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Full text of "An essay on the learning of partial, and of future interests in chattels personal"




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Prilled by J. H. & T. F. larii 

Entered according to the Act of Congress, in the year 1853, by 


III the Clerk's OfRce of the District Court for the Middle District of 


Auburn Unlyersity Ubrsries 
Ralph Brown m-mghon »rary 
231 Mela St. ^ ^ 

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The subject of this Essay is of great an;! iucrGasiug iinponanee: it 
presents many difficult caestions, and yet there is no work demoted to :'. 
I have undertaken to supply the deliciency, and I am saiisfied tiiat the 
result, notwithstanding its imperfections, wiil be usefol to the Profet;- 
«ion. Xo apology, however, is necessary for vvriting and publishing 
a book, though the manner of its execution may require remark. It 
may be v/ell, therefore, to say, that, in quoting largely from judicial 
opinions, and in drawing many cases, at times, from the reports, I 
believe that I have pursued the better plan , though it is true, v^hen 
principles are well s^ettled, clearly defined, and of easy application, 
such a course is burthensome and inineeessary« 

It is not unusual for an author to throw iiiraself upon the indulgeri-e 
«f his readers, but of what avail is it in a Profession, v;here the uni- 
versal sentiment is, pal mam qui meruit fcr at ? Even if it were of avo.'' 
iTo one within the outer pale of the '-Sanctuary" v/ould accept troni 
Favor that which Justice alone can rightfully render. 

And here I beg leave to tender my warmest thanks to tliose -'Meni- 
bers of the Southern Ear,"' who had the kindness to encourage me m 
this publication- 

-^.lONTGOMERY, (Ala,,) August, IS53'. 



Of the nature of Chattels Personal ; of the diflerent kinds ; 
the reason why thej are so called ; of the title to them ; of 
their position in our jurisprudence ; of the sources of this 
branch of the law. 


Of the creation and construction of Partial and of Future In- 
terests in Chattels Personal ; and of the poHcy of allowing 


Of Partial Interests in proesenti. 

Of the different kinds of Future Interests in Chattels Personal. 


Of the Destructibihty, Alienation, and Transmission of Inter- 
ests in Chattels Personal. 


Of the Respective Rights of persons having Prior and Subse- 
quent Interests ; and of their Remedies. 



Adams v. Broughton, § 361a, ^ 362 
Adams v. Jones, 114 

Aiiisworth v. Greenlee, 409 

Alcock V. Sloper, 484 

Alexander et ah. v. Espy, 330 

Allen V. Allen, 462 

Allen & Wife V.White, adm. 150,152 
Alston V. Coleman et ah. 108 

Andrews v. Fulham, 347, 349 

Andrew v. Andrew, 20 

Andrew v. Ward, 182, 257 

Angerstein v. Martin, 515 

Anonymous, (Cro. Eliz. 9.) 128, 127 
Archer V. Jegon, 
Archibald v. Wright, 
Ardesoife v. Bennet, 
Ashby V. Ashby, 
Ashley v. Ashley, 
Atkins V. Hiccocks. 
Attorney Gen"l v. Bayley, 
Attorney Gen-1 v. Hall. 
At wood's Heirs v. Beck, adm'r 



Betty V. Moore, 283, 343 

Bigge V, Bensley, 195 

Bifl V. Cureton, 64, 67 

Billings V. Sandom, 233 

Billingsley ei g/6-. v. Harris ^? o/. 

ex'rs, 305 

Bird V. Benton, 399 

Bird V. Hnnsdon, 261 

Black V. Beattie, 533 

Black, adm'r, v. Ray, 277 

Blackborn v. Edgeley, 195 

Black. Com. 12, 292 

Blake v. Bunbury, 381 

Bland v. Williams, 219 

Bohn V. Headley, Sola, 362 

Bonner & Wife v. Bonner, 52S 

Booker et ah. v. Booker et ah.., 185 

Booth V. Booth, 
Bostwick V. Leach, 
Bourne v. Gilibs, 
Bonvier"s Institutes, 
Boynton v, Boynion, 
348, 349 Bradley v. Peixoto, 
V. Westcott; 
70, 126, 413 " V. Mosby, 

262 Brandon v. Brandon, 
554, n. (a) 

Avelyn v. Ward. 

Bac. Abr. 

Bacon v. Cosby, 

Baker v. Rowan, 

Baldwin's Case, 129 

Banks, adm"r v. Marksberry, 362 Brewster v. Striker, 

161 'Bridge V. Abbot, 
195'iBriggs V. Penny, 
462|Britton v. Twining. 
93 Bro2rave v. Winder, 

222, 221 

146, 172 


Barford v. Street 

Barlow v. Salter, 

Barnes v. Pearson et ah 

" V. Patch, 

" Simmes, 79 

Baskin's Appeal, 101 

Batsford v. Kebbell, 214 

Batten on Specif. Per. 44^ 

Beauclerk v. Dormer, 184, 195, 252 

Bell V. Phyn, 350 

" V. Kinaston, 497 

" & Wife V. Hogan, 258 

" on Prop. Hus. & Wife, 450, 453 

Bentley & Bradley, adm"rs, v. 

Long et al. 565 

Benton v. Pope et als. 1 19 

Benyon v. Madison, 214 

V. The HuntsvilleB'k. 108 

V. Robinson. 132. 133 




71, 170 
268, 462 

Brouncke v. Bagot, 
Brown v. Kelsey, 

" V. Peck, 

" V. Lord Kenyon, 
Brown field's Estate, 
Browniiis v. l^eadley, 
Buford, fcc. V. Buford, 
Bull V. Kingston, 
•' V. Pritchard, 
Burford v. Lee, 
Burnett v. Robert.*, 

" V. Kinaston, 
Burton v. I^.iount. 



Butler V. Stratton, 100 

Butricke v. Broadhurst, 39(i 

Butterfield v. Butterfield, 1956, 234 
Byfield's Case, 228 


Cafe V. Bent, 484 

Cairnes et ah. v. Chaubert & 

Wife, 22, 485 

Caleb V. Field et ah. 166 

Calthorpe v. Gough, 349, 350, 366 
Cambridge v. Rous, 233 

Campbell v. Harding, 184-5, 190-95 
Caplinger v. Sullivan, 463 

Carr et ah. v. Green, 264, 282 

" " V. Jeannerett, 238, 264 
Came v. Brice et al., 142 

Carpenter et al. v. Lewis et al., 1 
Carter v. Carter, 126 

Carter v. Spencer, 408 

Carter & Wife v. Balfour's A.dm'r, 60 
Casey v. Fonville, 462 

Cavan v. Pultney, 384, 386 

Chandless v. Price, 177, 247 

Chatham v. Tothill, 250 

Cliaworth v. Beech, 502 

Chesire v. Chesire et ah., 528 

Chesterfield (Earl) v. Janssen, 444 
Child V. Giblett, 233 

Chycke's case, 128 

Clanrickard et ux. v. Sidney, 369 
Clare v. Clare. 252 

Clark & Wife v. Saxon & Wife, 524 
Clark V. Parker, 44 

Coates' Appeal, 118, 174 

Code, (Ala.) 1, 195, 205 

Co. Lit. 1,25,123,404,462 

Cole V. Wade, 90 

Coleridge's Black., 12 

Collier's Ex'r v. Slaughter's admr.38 
Collier v. Squire, 99 

CoUins V. Montgomery, 414 

Corny n's Dig, 413 

Concklin v. Haveti, 504, 509 

Copeland v. Copeland, 399, 400 
Corbet's case, 229 

Cordes et al. v. Adrian et al.., 523 
Covenhoven v. Shuler, 20 

Cox V. Godsalve, 1 

Cox V. Buck, 396 

Crawford v. Trotter, 253 

Cresswell v. Emberson, 280 

Creveling V. Jones, 130 

Crooke v. DeVandes, 191 

Crosbie v. Murray. 383 

Crosby v. Wardsworth, 1 

Cro.=«sling v. Cros.sling, 164 


Crostwaight etals. v. Hutchin- 
son et ah.., 379 

Daniel v. Dudley, 260 

Dargan & Bradford v. Richard- 
son, 414 
Darlington v. Pultney, 385 
Davenport v. Prewitt's Adm'r, 404 
Davies v. Duke of Marlborough ,442 
Dawes v. Swan et ol.., 519 
Dawson v. Dawson, 363 
Dean v. Whitaker et al.., 374 
DeMillen v. McAlilly, 361 
Denn d. RadclifF v. Bagshaw" 

et ah.^ 311, 366 

DeTreville v. Ellis, 194 

Dickson, In re, 43 

Dimes v. Scott, 515 

Dobson v. Scott, 507 

Dodd V. Wake, 199 

Doe V. Perryn, 255 

Doe V, Collis, 257 

Doe d. Winter v. Perrat, 324, 325 
Doe V, Sheppard, 311 

Doe d. Cadogan v. Evvart, 185 

Doe d. Stevenson v. Glover, 149 
Doe V. Carter, 137 

Doe V. Oliver, 421 

Doe V. Phillips, 126 

Doe V. Joineville, 93 

Doo V. Brabant, 305, 311,313,349, 

350, 366 
Dorr V. Wainwright, 20 

Dorrell v. Collins, 131 

Dott v. Wilson, 258 

Douglas V. Chalraer, 233 

Drakeford v. Wilks et ah., 11 

Driver v. Riddle, 537 

Druce v. Denison, 381 

Duhamel v. Ardovin, 76 

Dunbar's Ex'rs v. Woodcock, 22.487 
Dunn et al. v. Davis, 253 

Dunwoodie's Exrs v. Masters, 280 
Dyer, 67 b. n. (20) 413 

• E. 
Eddings etals. v. Martin's Ex'rs, l05 
Edwards v. Symons, 123 

Ellison V. Elwin, 451 

Elmsley V. Young, 96 

Elton V. Eason, 250 

Emmerson v. Heelis, 1 

Evans v. Peacock, 433 

Evans v. Wells, 253 

Evans et ah. v. Iglehart, 488 

Ewing V. Standifer et al. 250, 257, 403 
Exel V. Wallace, 235 




Eyres v. Fauklaiid, 292 

Fable v. Bmvvii, Ex'r, lOS 

Fearne's Rem. (vSmith'sEd.) 12,25, 
178, 182, 233, 248. 257, 268, 282, 
312, 322, 328, 354, 420, 421, 429 
Field, Adnrr, v. Eaton's Ex'rs, 127 
Finch et al. v. Rogers, 493 

Fiule}^ V. Hunter, 288, 547 

Flinn v. Jenkins, 262 

Flinn v. Davis et al., 146, 150, 185 
Flowers V. Franklin. 552 

Foley V. Burnell, 497 

Fonblanque"s Eq., 419 

Fonnereaa v. Fonnereau, 348 

Ford V. Ruxton, 130 

Foster v. Mabe, 1, 410, 41 ll 

Frank v. Frank, 384| 

Freeman Rep. Ill 

Frike v. Lord Barrington, 377J 

Gallego's Ex'rs v. The Att'y Gen. 84' 

Gardner v. Astor, 

Garrard v. Lord Lauderdale, 

Geiger v. Brown, 

Gentjy v. Jones, 

Gibbons v. Caunt, 

Gibson V. Bott, 

Gift V. Anderson, 

Ginger d. White v. White, 

Girdlestone v. Doe, 

Goodenough v. Tremamodo, 











156, 164| 





433, 438: 


90. 93, 94i 











Hailes v. Ingram, 270 

Hallett & Walker, ex'rs, v. Allen, 51 8 
Ham V. Ham, 119 

Hames v. Hames, 99 

Hanson v. Graham, 214 

Hardesnan v. Sims, 554 n. (a) 


Harris et al. v. Knapp et al. 261 

Harrison v. P'oreman, 264 

Harrison et al. v. Foster e^«/. 20, 486, 

Hay V. Earl of Coventry, 255 

Haydon v. Ewing's Ex'rs, 381 

Hayle v. Bnrrodale, 551 

Hay ward v. Stillingfieet, 449 

Headen v Rosher, 443 

Heane v. Rogers, 396 

Hewitt V. Morris, 515 

Hibbert V. Cooke, 563 

Higginbotham v.Rncker, 344 

Higgins V. Dowler, 252 

Hiil v. Hill, 344 

Hill et ux. V. Hill et al.. Adm'rs, 344 
Hill's Ex'rs V. Bowman et al., 112 
Hinckley v. Simmons, 233 

Hinds V. Rose, 419 

Hinson & Wife v. Pickett, 522 

Hodgeson et als- v. Bussey, 252 
Hoes et als. v. Van Hosen, 277 

Holmes v. Cradock, 366 

Home V. Pillans, 233, 356 

Goodtitle v. Otway, 
Goodwin v. Moore, 
Gordon v. Harper, 
Governor v. Freeman, 
Gower v. Mainwaring, 
Gowland v. DeFaria, 
Goymour v. Pigge, 
Grant v. Lyman, 
Gray v. Sharp, 
GrafFtey v. Humpage, 
Green v. Green, 
Green v. Ward, 
Green v. Spicer, 
Green v. Harvey, 
Grey et al. v. Montague, 
Griggs V. Dodge, 
Guilhver v. Wickel, 

Honner V. Morton, 446, 451, 465, 466 
Hoopes v. Diindas, 33 

Hope V. Hntchins, 361a, 362 

Hopkins v. Jones, 19 In 

Horn et al. Gartman, 362, 363 

Horneby v. Clifton, ' 131 

Hornsby v. Lee, 446 

Horry & Trapier v. Glover ef al. 554 
How V. Earl of Dartmouth, 482, 483, 

Hubback on Succession, 478 

Hughes V, Sayer, 184, 191 

Humble v. Mitchell, 2 

Humphrey v. Humphrey, 235 n.(a) 
Hunt V. Scott, 484 

Hurchin v. Mannington, 115 

Hyde v. Parrat et al. 9 

Idev. Ide, 146 

lUingworth v. Cooke, 97 

Irwin V. Farrior, 159 

Jackson v. Robins, 172 

Jacobs & Slowman, Adm'rs. v. 

Perryclear, 462 

Jaggers v. Estes, 13 

James' Ex'rs v. Masters, 280 

Jarman on Wills, 38.42, 72, 124, 

183, 185, 187, 188, 204. 218, 220, 

221, 226, 251, 334h, 335 

Jee v. Audley, 195 

Jenkins et al. v. Pye et al, 444 




Jennings v. Gallimore, 98jLord Portmore v. Taylor, 

Johnson v. Johnson, 484 Losh v. Townley, 

Johnston & Wife v. Pastuer, 462 Loveclay v. Hopkins, 
Jones V. Sasser, 401,402" 

Jones V. Morgan, 560, 561 

Jones V. VVestcomb, 10, 347, 349 

Jones' Ex'rs v. Hoskins, 268, 368 

Jones V. Spaight, 185 

Jones V. Zoliicoffer. 270 

Judd V. WoodrnfF, 60 

Lowfield v. Stonehani, 
Lowndes v. Stone, 
Lowry v. Mountjoy, 

Kay V. Connor, 246, 259 

Kea V. Robeson, 

Keates v. Bnrton, 

Keating & Wife v. Reynokls. 

Kendall, In re^ 22 

Kent's Com. 15, 20, 268. 461, 567 


Lncas v, Lockhart, 
Luddington v. Kine, 
Luke V. Bennet, 
Lyde ct ah. v. Taylor et ah 

Mabeily v. Strode, 
69 Mackell v. Weeding, 
2G4i\:rachen v.Machen, 
188 Mackell v. Winter, 

35, 59, 


97, 114 


Kevern v. Williams, 

Keyes' Remainders, 

King V. Melling, 

King V. Hamlet, 

King V. Taylor, 

King et ah. v. Sharp, 

Kinnard v. Kinnard, 

Kirby V. Fowler, 

Kirk ham's Ex'rs et al, v. Mason 

et ah. 
Kirkpatrick v. Davidson, 
Knight V. Wall, 
Knight V. Leak. 

LafFer v. Edwards, 
Lane v. Green, 
Larned v. Bridge, 
La Terriere v. Bulmer, 
Leake v. Robison, 
Lear v. Legget, 
Lee V. McBride, 
Lemmond v. Peoples, 
Lenoir v. Sylvester, 
Lenoir v. Ptainey, 
Lentz V. Chambers, 
Lepine v. Farrard, 
Leslie's Ex"rs v. Briggs, 
Lett V. Randall, 
Lewes v. Lewes, 
Lewm on Trusts and Trus. lO 12 

133, 136 
Lewis on Perpitnities, 
Lewis V. Davis, 
Lillard v. Rncker, 
Lirtlewood v. Smith, 
Lockwood V. Sturdivant, 
Logan V. Simmons, 
Lomax's Di^cest, 
Loma.vs Ex'rs and Adm"rs, 



. 368,526 



Madden v. Madden's Ex'rs, 20, 262 
Magrnder & Nichols v. Stew- 
art's Adm'rs, 365. 369 
Malcolm v. Taylor, 228, 255, 259 
Mann v. Mann's Ex'rs, 381 
Manning V. Thesicer, 130 
Marr, Ex'rx. v. McCullongh, 212 
Massey v. Hudson, 193 
Masterman v. Maberly, 363 
Mathenev v. Guess ct ah. 466 
May v. VVood, 214, 222 
47 Mazick et ah. v. Yanderhosr & 
237 Wife, 25,185 
202 McBride v. Choate et ah. 462 
408, 462 McCord v. Ocheltree, 60 
McDonald & Wife v. Walgrove 

etal. 146 

McDougal et ah. v. Armstrong, 375, 

515 McGraw v. Davenport, 188.233 
224jMcGuire V, Evans, 127 

525 McLaughlin's Administrators 

V. Daniel, 376 

McLeroth v. Bacon, 93 

McMeekin v. Brummet. 202, 477 
McNeilledge v. Barclay, 85 

McNcilledee v. Galbraitli et als. 

Ex'rs, ^ 85 

McNeily v. Hart, 409 

McWilliams et ah. v. Nisby el als. 1 3 1 
Medley v. Jones, 527 

Mehretens v. Andrews, 
149lMeredith v. Heneaee. 








218. 2-25 

39, 43 



Merrill v. Emery, 

Mifflin V. Neal, Adm'r, 15- 

Monkhonse v. Holme, 

369iMoody v. Walker, 

459|Moon et als. v. Herndon et als. 197/i 

r29JMooney v. Evans, 507 

16, i7;Moore v. Barrv, ' 404 




Morgan v. Morgan, 212, 

Moroney v. O'Dea, 
Move et ah. v, , 

Murray v. Palmer, 

ISevJi's Case, 

Newcomb, Agan & Randall v. 

Newman v. Newman, 
Newsom et al. v. Thompson's 

EXTS, &c. 

Nichols V. Skinner, 
Northnmberland (Earl) v. Mar- 
quis of Granby, 
Nowlan v. Nelligan, 

Onimaney v. Bevan, 
Onslow V. South, 

Page V. Leapingwell 
Palm V. Hills, 
Parsons v. Parsons, 
Paris V. Paris, 
Parker v. Staniland, 
Parkinson In re. 
Paton V. Sheppard, 


483, 484, Price v. Price, 243, 268 

515. 517 " et ah. v. Boyd ct ah. 376 

' 433Pullamv.Byrd, 168 

369, 450 Pulteney v. Darlington, 370 

436 Pnrcy v. Debonverie, 419 

Pnsliman v. Filliter, 71. 119 

27 Purdew v. Jackson, 446, 46o', 466 

Pulsford V. Hunter, 224 

1 Pyot V. Pyot. ' 88 

419 R. 

jRamey et ah. v. Green, adifi'r, 531 
52 Ramsden v. Jackson, 11 






98«, 99 






Ranelagh v. Ranelagh, 257 

Read etals. v. Fite, 101 

Reddington v.Reddington, 560, 562 

Patterson v. Devlm etal. exTS. 20, 22 


Patterson v. Ellis, 234, 235a 

Patterson v. Campbel!; 63 

Payne v. Lassiter, 13 

Peacock v. Rvans, 433 

rearsall v. Simpson, 311 

Peck et vx. v. Glass ct al. 558, 559 

Pells V. Brown, 195 

Fenryhn v. Hughes, 555, 557 

Ferry v. Philips, ' 325 

Philips V. Philips, 369 

Philips V. Evans, 113 

Philips V. Eastwood. 71 

Fickard v. Sears et al. 402 

Pickard v. Spear, 396 
Pickering v. Pickering, 22.. 484, 516 
Pinbury v. Elkin, 188,' 195,' 479 

Pitts V. Mangum, 360, 363 

•' V. Curtis, 
Pleydell v. Pleydell, 

Poi'ndexter v. Blackburn et al. 270 

Pope V. Pope, 95, 96 

" V. Whitcomb; 91 

Porter v. Ingram, 129 

''• V. Bradley. 185, 191 

_ " V. Tournay, 20 
Portmore (Lord) v. Taylor, 433 

Powell V. xMorgan, 39, 42 

V.Brown, 281,282 

Reid V. Shergold, 
Reith V. Seymour, 
Richards v. Ayres, 
Riddick v. Cohoon, 
Ridges v. Morrison et al. 
Ridgway v. Ridgway, 
Ried V. Lamar, 
Right V. Creber, 
Robertson et al. v 

Wife et al. 
Robinson v. Robinson, 
" V. Waddelow, 
Robison v. Robison, 
Roe v. Jeffrey, 

'• v. Wicket. 

d. Perry v, Jones et ah. 

'reston on Merger. 

Collin and 

22. 549 

Roper on Prep, of Hus. & Wife, 462 
" Legacies, 41, 98a, 106. 226, 

296, 372 
Ross V. Ross, 154 

Russell on Crimes, 1 

Sabbarton v. Sabbarton, 252 

Sale v. Moore, 119 

Sanders v. Franks, 99 

Saunderson & Wife v. Stearns, 251 
Scarborough v. Borman, 139 

Scott V. Price, 264 

" V. Perkins, 521 

Shaw et al. v. Shaw et ah. 29, n. (a) 


409, 411 


3C6, 496 





448, 455 




46.SjShee v. Hale, 
15, 184 1 Sheldon v. Loper, 
^ Shelly V, Nash, 
Sheppard'S Tc^uchs. 126 
Sheppard v. Simpson, 
Sheirat v. Bentiey, 
Shirley v. Shirley et al. 
t^hoenberger v. Lyon, 
Shuman v. Reigi^irt, 
Shrew fcbury v. Shrewsbury, 
Silsbury v. McCoon, 
369, 370, 371 Simmons v. Simmons, 




Simms v. Garrott, 101 

Siter's Case, 455 

Sledge's Adm'r et al. v. Clopton, 360 


Smith V. Barham, 
V. Bell, 

237, 261 

" V. Campbell, 

V. Gates, 

" V. Hilliard, 

'= V. Mundy, 402 

" V. Oliver, 15 

" V. Stewart, 233 

" V. Tritt, 409 

" et ah. V. Martin's Ex'rs, 105 

Snowden v. Dales, 138 

Sommerville v. Johnson, 504 

Sonday's Case, 228 

Sprange v. Barnard, 71 

Stallsvvorth et al. v. Stallsworth's 

Ext, 176 

State, use &c. v. Savin, 275 

Stephens v. Baird, 396 

Stephen's Comment. 1, 12, 17, 238 
Stevens et ah. v. Patterson, 192, 194 
Stewart v. Doughty, 1 

Stone V. Maule, 262 

Story's Eq. Jar. 1, 18, 19, 63, 118, 
174, 378, 384, 388, 407, 444, 463 
Story's Bailments, 241 

Stratton v. Best, 381 

Strodes v. Cavan, 413 

Strong v. Strong, 480 

Sturgiss V. Pearson, 350 

Suffolk V. Bindon, 233 

Sugden on Powers, 85, 90, 92 

Snllivan et ux. v. VVinthrop et al. 518 
Samner v. Williams, 126 

Surman v. Surman, 77 

Sutherland v. Cooke, 515 

Sweet v. Chase, 131 

Swift V. Swift, 95 

T, I 

Taber v. Packwood, 238 

Target v. Gaunt, 191 

Taylor v. Clark, 515 

Thomas, &c. v. Kennedy, 464 

Thubridge v. Kilburne, 195 

Tidd's Practice, 409 

Tipping V. Howard, 98 

Tissen v. Tissen, 9 

Tolson et ah. v. Tolson et ah. 94 
Tomlinson v. Dighton, 164, 165 
Touchstone, 126, 306, 496 

Trotter v. Blocker & Wife, 108 

" V, Williams, 233 

Trustees, &c. v. Peaslee, 114 

" Phil, Ass. et ah.v. Hart's 
Ex'rs, 60 


Tuckers Com. 237 

Tudor V. Terrill et ah. 79 

Tullet V, Armstrong, ' 139 

Turner v. Turner. 27 

Ulrich V. Litchfield, 121 

Upshaw V. Upshaw et ah. 419, 464, 

467, 560 
Upwell V. Halsey, 77, 170, 541 

Vane v. Lord Dungaimon, 384 

Vaunerson v. Culbertson, 277 

Viner^s Abr. 123, n. (a), 127, 128, 

130, 235 

Waddin2:ton v. Bristow, 1 

Wake v." Wake, 388, 390, 419 

Waite v. Templar, 82 

Walker v. Watts, 263 

" et al. v. Walkers Ex'r. 519 

Walkers Ex'rs v. Bostick, ' 108 
Wall is v. Taylor, 

Walwyn v. Coutts, 65 

Ware v. Cann, 131 

Warley v. Warley, 557 

Watkin's Conveyancing, 426 

Watson v. Hayes, 214 

Weatherford v. Tate, 143 

Webster v. Hale, 233 

W^ells v. Foster, 19 

West v. Tilghman, 899 

Whipple v. Foot, 1 

Whistler V. Webster. 419 

White V. Collins, ' 250 

^' V. White, 556 

Whitaker v. Whitaker, 470 
Williams on Per. Pron. 12, 17, 61, 

67, 247 
Williams on Exec'rs, 32, 33, 38, 85 

Williams et ah. v. Conrad et ah. 13 

Williams v. Williams, 04 
Williamson & Wife v Mason, 

adm'x, &c, 491 

Wilson V. Cockrill, 343 

Wilson V. Major, 71 

Woeiper's Appeal, 455 

Woodgate v. Unwin, 329 

Woodley v. Findlay et al. 257 

Wordsworth, Joint Stock Co. 1 

Wright v. Atkins, 94 

Wych v. East India Co. 404 

Wynn v. Hawkins, 7L 


Yarborough v. Harris, 403 

Yate V. Mosely, 419 

Youde V. Jones, 131 

Young's Adm'r v. Small, 277 



I 1 . Of the Nature or Chattels Personal. § 2. Of the Different 
Kinds. § 3. Of the Reason Why thet are so called. ^ 4. Of the 
Title to them. | 5. Of their Position in our Jurisprudence, § 6. 
Of the Sources of this Branch of the Law. 

§ 1. The Common Law divides all property into two great 
classes : 1. Real Property : 2. Personal Property. 

Land, and interests issuing out of, or annexed to land, consti- 
tute the subjects of real property. Interests, in the subjects 
of real property, which are of the measure of freehold, belong 
to the first class. 

Personal property is subdivided into two great classes : — 
1. Chattels Real : 2. Chattels Personal. 

Chattels Real include all interests, in the subjects of real pro- 
perty, which are not of the measure of freehold. 

All property, therefore, which does not belong to the class of 
real property, nor to that of chattels real, falls within the class 
of chattels persoDal. 

Chattels personal consist, therefore, in part, of things, as 
Lord Coke says, gw^e se movent^ and things qucB db aliis moven- 
tur. Thus, slaves, cattle, furniture, books, victuals, money and 
the like, are chattels personal. They consist, also, in part, of 
things which exist only in contemplation of law j as choses in 
action, patents, copy-rights, and the like. 


When things of a personal character are annexed to 
thej become a part of the realty, and pass with it by descent 
or alienation ; for the maxim is, quicquid plantatur solo, solo 
cedit. This is the general rule, " yet are there numerous cases 
in which the contrary is true, and in which the fixture retains, 
after its annexation, the quality, in some respects, of a personal 
chattel ; being in truth exceptions gradually established by the 
course of judicial decision, as incident to the ordinary rule which 
merges the fixture in the freehold, because reason and conveni- 
ence seemed evidently to require that rule to be so qualified.'" 
But we need not go into the subject of fixtures ; since it is 
sufficient for our purpose, that no chattel personal can be so 
fixed to the freehold, that it will not upon severance resume its 
original character : and this severance may be either actual or 
constructive. Actual severance needs no comment. Of con- 
structive severance it may be said, that whenever there is a 
transfer of a fixture, and the fixture is to be severed, and not 
used as a fixture, the thing is severed in contemplation of law. 
Thus, mill-stones fixed for grinding, that are to be removed, 
and houses that are to be taken down or carried away, are ex- 
amples of constructive severance.^ 

There is an apparent conflict of judicial decisions under the 
statute of frauds, in regard to things growing upon land. Thus, 
in Littlewood v. Smith, Treby, Ch, J., reported to the other 
Justices, that it was a question before him at a trial at nisi 
prius at Guildhall^ whether the sale of timber growing upon 
the land ought to be in writing by the statute of frauds, or 
might be by parol ? And he was of opinion, and gave the rule 
accordingly, that it might be by parol, because it is but a bare 
chattel. And to this opinion Powell, J. agreed.^ 

In Crosby v. Wadsworth the facts were, that the plaintiff 

^2 Steph. Com. 261. ^Bostvvick v. Leach, 3 Day, 484. Foster v, 
Mabe, 4 Ala. 402. ^jLd. Kay. 182. 


agreed with the defendant by parol for the purchase of a stand- 
ing crop of mowing grass ; the grass was to be mowed and made 
into hay by the plaintiff, but no time was fixed when it should 
be done. Lord Ellenborough, Ch. J,, held that the subject 
matter of the agreement could not be considered as falling with- 
in the terms, goods, wares or merchandize ; but that the agree- 
ment was a contract or sale of an interest in, or, at least, an 
interest concerning land.^ So in Waddington v« Bristow,^ it 
was held that growing hops were not goods, wares, or merchan- 
dise ; and in Emmerson v. Heelis^ it was held that a sale of 
growing turnips was not distinguishable from the preceding one, 
and was a sale of an interest in land. 

In the next case, however, which came before the King's 
Bench, the facts were, that A sold to B a crop of potatoes on 
the 21st of November, and B was to get them out of the ground 
immediately. Lord Ellenborough said : It does not follow that 
because the potatoes were not, at the time of the contract, iu 
the shape of personal chattels, as not being severed from the 
land, so that larceny might be committed of them, therefore the 
contract for the purchase of them passed an interest in the land 
within the 4th section of the statute of frauds. * * * * 
It is probable that in the course of nature the vegetation was 
at an end : but be that as it may, they were to be taken by the 
defendant irnmedidfely, and it was quite accidental if they de- 
rived any further advantage from being in the land. * * * 
I am not disposed to extend the case of Crosby v. Wadsworth 
further, so as to bring such a contract as this within the statute 
of frauds as passing an interest in land.* 

During the argument of Emmerson v. Heelis before cited, 
Mansfield, Ch. J. observed, that if a tenant in tail, or ecclesi- 
astical person, sells timber standing and dies, the purchaser shall 

»6 East. 602. 22 Bos. & Pul. 452. H Taunt. 38. *Parker v. Staui- 
iand, U East. 362. 


not cut it in the time of the issue in tail, or successor. In 
case, replied the counsel, it ceases to be a mere chattel, because 
the vendor cannot give license to enter ax'tcr his death to cut it. 
It is not a fruit fallen during his estate, but remains fixed to 
the inheritance. And he added, that even in the case put, as 
between the vendor and the vendee, the timber can onl/ be con- 
sidered as a mere chattel. 

In this country, growing crops have been held not to be with- 
in the 4th section of the statute of frauds, though it seems rather 
inconsistent to say that a purchaser of a crop has no interest 
concerning land, and at the same time to assert that by virtue 
of such purchase he may, at any time during the growth and 
maturity of the crop, maintain trespass quare clausum /regit. ^ 

The true distinction between things growing upon land, so far 
as a sale of them is affected by the 4th section of the statute of 
frauds, seems to be, that if they are to be severed immediately, 
they pass as mere chattels ; if they are to remain for growth, 
nourishment, or for use, an interest concerning the land is in- 
volved in the contract. In Bostwick v. Leach, however, the 
Court disregarded such a distinction in laying down the rule to 
be : When there is a sale of property, which would pass by a 
deed of land, as such, without any other description, if it can 
be separated from the freehold, and by the contract is to be 
separated, such contract is not within the statute.^ But how 
can it be said that there is no contract concerning an interest 
in land, when a party by contract has the right to the use of 
land for the growth and maturity of the crop, or of trees 1 But 
be this as it may, it is true, apart from the statute of frauds, 
that growing crops are chattels personal. Thus in the old case 
of Cox V. Godsalve, Thomas Godsalve devised a farm to his 
mother for life, remainder to John Godsalve, the defendant, in 

•See Newcomb, Agave & Randall v. Ramer, 2 Johns. Rep. 421, n 
(e)5 Stewart v. Doughty, 9 Johns. Il3. 23 Day^ 454. 


tail, with remainder over, &c. ; and he bequeathed to his mo- 
ther all his goods and chattels, stock of his farra, bonds, &c., 
during the full term of her natural life. Thomas Godsalve died 
before the corn which he had sowed upon the land was severed, 
and his mother also died soon after hira, and whilst the corn was 
still unsevored. After the death of the mother, John Godsalve, 
the defendant, reaped the corn, and converted it to his own use. 
Cox, the plaintiff, took out letters of administration to the mo- 
ther, and brought an action of trover against John Godsalve. 
The question was, whether the corn growing did pass to the de- 
fendant John Godsalve, by the devise of the land sown, to him 1 
The case of Spencer, Winch. 51, was urged, where it was re- 
solved that the devisee of the land sown should have the corn, 
and not the executor of the devisor. To which it was answer- 
ed : That is true, if the intention of the testator doth not ap- 
pear to be otherwise, as in this case is most manifest, for that 
he gives all his goods, chattels, plate, and household stuff, stock 
of his farms, debts, ready money, and all other his moveables, 
&c., to his mother. If the devisee of the land hath the corn 
growing at the time of the testator's death, it is only against 
the executor, but not against a legatee of his goods ; and it is 
hard to give it to the devisee by implication against an express 
bequest. This case, says Holt, Ch. J., being afterwards refer- 
red to me for further consideration, I was of opinion that the 
corn did belong to the mother as devisee, and not to the devisee 
of the land. ' 

So, in other cases in which they have been held liable to levy 
and sale as the personal goods of the defendant.* 

There is evidently a distinction, however, between crops and 
trees. Crops are to be severed, but trees are permanent things ; 
and it depends therefore upon the question of severance, wheth- 

'6 East, 604, n (d). 

2 Whipple v. Foot, 2 Johns. 448. 


er the latter will be regarded as chattels personal. ThnSj if 
trees he conveyed to A for life, or to A and his heirs, ja> freehold 
and not a chattel passes. But if they are to be cut down, then 
they fall within the general rule which governs fixtures. 

Parts of the soil itself may become chattels personal by ac- 
tual or constructive severance ; as clay, gravel, stones., and the 
like. Thus, in Carpenter ei al v. Lewis et al, where A made 
bricks out of the soil belonging to the Government, and after- 
wards the land was sold by the Government to B, and B con- 
verted the bricks 'which were still upon the land, it was held that 
A might maintain trover for them against B — a^t least, as B 
showed no connection between himself and .the Government in 
respect to them.' 

There is one point of view in which none of these things, 
which savor of the realty by reason of their connection with it, 
are regarded as chattels personal, and that is larceny. If, how- 
ever, any of them be actually severed from the land, then they 

become chattels personal, and may afterwards be the subject of 

It is said that there is diversity of judicial opinion in regard 
to shares in companies acting exclusively on land, as rail-road, 
canal, and turn-pike companies — that in England, and in some 
of the States, they are held to be real estate, unless declared 
by statute to be personal property; whilst in other States, they 
are held to be chattels personal at the common law. Stephens 
Sergt. in his commentaries, under the head of ** Shares in Public 
Undertakings connected with Land," says : The property in 
public undertakings of this description (such as mines, canals 
and rail-roads, to which the public are subscribers) is in the na- 
ture of realty, so far as regards the land itself, or the right of 
using it ; and is, for some purposes, of the same nature, as re- 
gards the fixtures connected with the concern. But where the 

'6 Ala. 682. ^2 Russel on Crimes, 136-7. 


property is vested, by charter or act of Parliament, in a body 
corporate, the shares of the individual corporators in the con- 
cern itself are personal, and not real estate ; for such shares 
are merely the rights which each individual possesses, as a part- 
ner, to a share in the surplus profit derived from the employ- 
ment of the capital, which is always a mixed fund, consisting, 
in part at least, of personal chattels, as well as land and fix- 
tures. * Another English writer says ; Shares in public com- 
panies have sometimes been held to be real, but more generally 
personal property. He lays down a principle which he says 
seems to be recognized by the courts, upon which the result will 
always turn as to the shares being real or personal estate. 
That principle is, that if the land be vested in the company as 
a corporation, and not in the individual share-holders, then the 
shares are chattels personal ; but if the land be vested in the 
share-holders, and the management pf the company merely in 
the corporation, then the shares are real property.^ 

In Equity, land purchased for partnership purposes is held 
to be mere personal property. The same principle applies to 
unincorporated joint-stock companies, which are but partner- 
ships of a larger growth. And even in the case of a corpora- 
tion, real property held for the purposes of a trading company 
will be deemed personal estate. ^ 

So also in Equity is real property, w^hen directed to be turn- 
ed into money, held to be a personal chattel, so far as the testa- 
tor's representatives are concerned. And so when a valid sak 
of land has been made, the vendor has in Equity but a chattel 

There are some chattels personal which descend like real es- 
tate, as personal annuities to A and his heirs ; but notwithstand- 

'2 Steph. Com. 263. 

nVordsworth-s J. S. Co. (288). ^b. 293. 

*2 Story's Eq. Jur. ^ 790, 


ing this quality of descent, which constitutes them heredita- 
mentSj they are still chattels personal. ^ 

§ 2. Chattels personal are divided into two general classes : 
1, Corporeal chattels personal, consisting of such as may be 
touched ; as books, horses, and the like : 2. Incorporeal chat- 
tels personal, consisting ©f those which have no existence but 
in gremio leg is ; as patents, personal annuities, shares in rail- 
roads, future interests in chattels personal, &c. 

There is another division of them, viz : 1. Those in possess- 
ion, or enjoyment :. 2. Those in action. Thus, if A be entitled 
to a corporeal chattel personal, and have it in possession, actual 
or constructive, it is a chose in possession ; and if he be entitled 
to an incorporeal chattel personal, and be in the enjoyment of 
it, it is a chose in enjoyment; but if either the corporeal or the 
incorporeal chattel personal be held adversely to him, it is a 
chose in action. But a chose in action is a still more compre- 
hensive phras>, for it includes not only a right to maintain an 
action for a specific thing, but also a right to maintain an action 
for a debt, and a right to maintain an action for damages ex 
contractu or ex delicto. And it matters not in this respect 
whether the specific thing be a chattel personal, a chattel real, 
or a freehold. 

It may be true that all choses in action are incorporeal chat- 
tels personal, but it seems not to be true, that all incorporeal 
chattels personal are choses in action ; unless the distinction be, 
that all choses not in the actual or constructive possession of the 
owner, whether adversely held or not, or whether capable or in- 
capable of possession, are choses in action. It is true, that a 
debt not due is a chose in action, though no present right of ac- 
tion exists ; but, an action may be necessary for its recovery, 
and therefore it is said to be in action. No action can be ne- 

^But see Code (Ala.) 


cessary for an incorporeal chose in enjoyment, any more tban it 
can be for a corporeal chose in possession. A share in an incor- 
porated company, for example, is not, as was sail by counsel 
in Humble v. Mitckell,' a mere "rigbt to participate in the 
partnership profits," but it is a chose as distinguishable from 
the profits which it yields, as a horse is distinguishable from 
the hire that he yields. It was said, however, by Lord Denmaa 
Ch. J., i:i that case, that " shares in r« joint-stock company like 
this, are mere choses in action, incapable of delivery, and not 
within the scope of the seventeenth section" of the statute of 
frauds. But it is apparent that the distinction between incor- 
poreal chattels in enjoymcLt, and choses in action, was not in- 
volved in that case. 

The truth is, that the Common Law had no such choses in 
contemplation as incorporeal chattels, when the distinction was 
made between choses in possession, and choses in action. They 
are the creations of a later day, and seem to partake of the na- 
ture of both their predecessors. 

There is another division of chattels personal which it is ne- 
cessary that we should state, viz : those which are consummable 
by use, as corn ; and those which are not consumable by use, as 

§ 3, These chattels are called personal, says Lord Coke, be- 
cause, for the most part, they belong to the persoi. of a man, or 
else for that they are to be recovered by personal actions. 

Mr. Williams submits that the latter is th^- '.dtter reason, 
because, when chattels began to be called personal, they had 
become too numerous and important to accompany the persons 
of their owners ; and because the nomenclature of the law is 
most likely to have been derived from the different natures of 
actions. But notwithstanding Mr. Yvilliams's opinion, the most 

'11 Ad. &EI. 205. 


satisfactory supposition seems to be that they were called |?er- 
sonal^ because they might be carried by their owners from one 
part of the world to another, and were thus distinguished from 
chattels real, which had the immobility of real estate. And 
this supposition has the sanction of Blackstone. 

§ 4. Chattels personal are the subjects of absolute and of 
qualified title. The only chattels, however, which are the sub- 
jects of qualified title alone, are creatures that arefejce natures. 

The municipal title to chattels personal, like the municipal 
title to every other species of property, is derived from the mu- 
nicipal law. The natural title is generally derived from occu- 
pancy ; but whence this right of occupancy ? Without, howev- 
er, venturing into a discussion of the matter, it may be suggest- 
ed, that the source of man's natural title to an inferior genus, 
is equally the source of his natural title to an inferior species of 
his own genus.. 

§ 5. Under the feudal system, real property was the great 
source of political power, and the foundation of feudal grandeur. 
Chattels were rarely an object of notice, either in the treatises 
or reports of the times prior to the reign of Henry VI. They 
continued in a state of insignificance, until the decline of feudal 
tenures, and the increase of industry, wealth and refinement 
had rendered them an object of growing solicitude. Real pro- 
perty, however, lost none of its value as an element of indi- 
vidual and national wealth, but, on the contrary, it greatly ad- 
vanced in value ; still chattels personal have obtained a para- 
mount place in our jurisprudence, by reason of their varied and 
interminable number, and by reason of the natural necessities 
which civilization developed, and of the artificial necessities 
which it created. 

§ 6. The ancient law books contain but little in regard to 
this species of property, and nothing in regard to partial and 


future limitations of it. The rules by which limitations of it 
are governed are derived from the doctrines of real property, 
sometimes from the civil law, and sometimes doubtless from 
reason and convenienience. ^ The doctrines of real property 
are sometimes wholly inapplicable, sometimes partially inappli- 
cable, and that is a source of difficulty and error. 

'2 Steph. Com. 67. 



Of the Creation and Construction of Partial and of Future Inter- 
ests IN Chattels Personal; and of the Policy of allowing such 

§ 7. The title to chattels personal was held by the ancient 
common law to be indivisible ii.to successive interests, by reason 
of the liability of such property to be lost and destroyed. The 
transfer of the title of a chattel to A for his life — or even for a 
moment — passed, therefore, to him the title forever. 

§ 8. Courts of Equity, it is said, first departed from the 
doctrine of the ancient common law, by taking a distinction 
between the use of a personal thing, and the personal thing 
itself; and holding, where the use of a chattel personal was 
given to A for life, and after his death to B, that the gift over 
was good. Lord Ch. J. Brooke is said to have approved so 
much of this distinction, as to call it valde bone diversitie. 

§ 9, Subsequently the Courts of Equity held that there was 
nothing in the distinctioii, and they allowed, therefore, a gift 
over of a chattel personal after a gift of it for a limited period 
to be as good as when the use of it only was given to the first 
taker. Still they did not hold that a gift of a chattel personal 
to A for life gave to A the title to the chattel, but they held 
that the use of it alone passed to A. Thus, in Hyde v. Parrat, 
et al, where A bequeathed household goods to his wife for life, 
and after her death to his son, the Lord Keeper Somers, upon 
argument, took time to consider it; and afterwards, on the 
strength and authority of the late precedents, which had follow- 
ed the civil and canon laws, in construing the use of the thing, 
and not the thing itself, to pass, when the bequest is for a limit- 


ed time, in order the better to comply with the intention of the 
testator, allowed the bequest over to be good.^ So in Tissen 
V. Tissen, the Lord Chancellor said : Anciently the notions 
were that a personal thing given to one for life, or even for a 
day, was a gift forever, and would not bear a limitation over ; 
but this construction has since been that such devise passes only 
the use and profits and not the thing itself ; and so it is made 
good in that way.^ 

§ 10. The first cases in which these partial and subsequent 
interests were allowed in Equity, were cases arising under wills. 
The limitations were made without the intervention of trustees. 
There seems to be no reason why such interests by way of trust 
might not always have been made in Equity, since Courts of 
Equity have ever compelled trustees to execute the confidence 
reposed in them. Such limitations by way of trust, at any rate, 
are now good, whether the trusts be declared by will, by deed, 
or by parol. ^ 

^ 1 1 . They cannot be created in equity by parol without the 
intervention of a trust, and it seems doubtful even to this day 
whether a Court of Equity in England would acknowledge their 
validity when created directly by deed. It is well settled that 
such limitations of chattels real, by deed, are good without the 
intervention of a trust. Principle, as now established, would 
certainly require the Courts of Equity to acknowledge the vali- 
dity of such limitations of chattels personal ; and the only rea- 
sons that could be given for a refusal so to lay the rule, are that 
such was the ancient doctrine : precedent does not bind us to 
depart from it in this particular, and we are disinclined to a 
further departure. There is, however, a dictum^ cited by 
Blackstone in support of the validity of such limitations by 
deed ; and there is the case of Drakeford v. Wilks et als, in 

n p. Wms. 1. 2 1 p. Wms. 502. ^Lewin on Trusts & Trus. (28) 
(142). ^2 Freem. 206. 


which Lord Hardwicke held that a gift by deed to take effect 
after the death of the donor, was good, ^ and that case seems to 
cover the ground. 

§ 12. The English Courts of Law have followed the Courts 
of E(^uitj in departing from the ancient doctrine of the common 
law ; and they allow legal interests in chattels personal to be 
created by will. But they do not seem to have gone any far- 
ther. It is true that some text writers^ assert that such limita- 
tions by deed are good in England, but no case is cited which 
sustains the position; and other text writers^ assert that such 
limitations by deed are invalid. 

§ 13. In this country, all the courts agree that such limita- 
tions of chattels personal by will are good both at law and in 
equity. They all agree that such limitations by way of trust 
are good in equity, whether the trust, if otherwise valid, be de- 
clared by will, by deed, or by parol.* They all agree that fu- 
ture interests in chattels personal cannot be created by parol 
declaration without a trust with the exception perhaps of one 
court. * They all agree in' regard to the validity of such limita- 
tions, when made by deed without the intervention of a trust, 
except in North Carolina, where they have now long bfeen al- 
lowed by statute ; and except in one case, at an early day 
(1810) in South Carolina, which was never' followed, and Which 
has long been over-ruled. 

One court seems to have gone a little farther, and to have so 
laid down the rule as to admit such limitations to be created not 
only by will or deed, but also by "other writing."^ 

^3 Atk. (540); see also Ramsden v. Jackson, I Atk. (292). 
22 Black. Com. (398); 2 Steph. Com. 76. 

31 Coleridge's Biackstoiie, 398); Fearne's Rem. 3 n {e) ; 2 Fearue's 
Rem. I 168-168 b; Wms. on Per. Prop. (188); Lewin on Trusts, 142. 
* Williams et als v. Conrad et als, ll Humph, 412, &c. 
^See Jaggers v. Estes, 2 Strobh. Equity, 343. 
*Payne v. Lassiter, 10 Yerg. 310; see also 1 Hump, 66. 


§ 14. NotwithstandiDg the language of the authorities, it 
seems difficult to deny that a present and future interest in a 
chattel personal can, in effect, be created by parol declaration, 
since it cannot be denied, that such a chattel may be irrevoca- 
bly bailed for years or for life ; nor that the bailor may at the 
time of bailment, or afterwards during the continuance of the 
bailment, make a valid transfer of the chattel subject to the 
bailment. Such cases, however, belong to the doctrines of bail- 
ments and of the alienation of chattels personal, and depend 
upon them for their validity. 

§ 15. It is said that these limitations of chattels personal are 
good as to every species, and that there is no difference in this 
respect between money and other chattels.' This, as was in- 
tended, is but a statement of the general doctrine, and as a 
general rule is sustained by the authorities. Thus, in regard 
to money, which in itself seems as unsusceptible of limitation 
over as "a bird of passage," it was held in Smith v. Oliver,^ 
as early as 1688, that it might be limited over by will, after a 
bequest of it for life, and the same point was admitted in Pley- 
dell V. Pleydell. ^ So choses in action ex contractu may be 
limited in succession at law, or in equity, according to the as- 
signability of the title. Possibilities, even, are subject to such 
limitations in equity. But there are exceptions to the general 

§ 16. One exception is in regard to heir looms. So inherent 
are the heir looms in the freehold, that Blackstone says, they 
cannot be devised away from the heir by wiil 5 and that such a 
devise is void even when by a tenant of the fee simple ; though 
the owner might during his life have sold or disposed of them, 
as he might the timber of the estate ; for the custom intercepts 

'2 Kent's Com, (352.) ^2 Vern. 59. ^ P. W. 948; see also West- 
cott v. Cady, 5 John. Ch. Rep. 347. 


the title in the heir loom, for the beneSt of the heir, before it 
can vest in the devisee. * 

§ IT. Another exception is in regard to deeds and other evi- 
dences of the land, together with the chests in which they ar$ 
contained ; deer in a real authorized park in England, fishes in 
a pond, doves in a dove-house, &c., which, though in themselves 
personal chattels, yet are so annexed to and so necessary to the 
well-being of the inheritance, that they shall accompany the 
land wherever it vests, by either descent or purchase.* But 
where deeds are deposited by the owner as a security for money 
lent, they are chattels personal in the hands of the lender.' 
And in order to bring the chests in which the title deeds are 
contained, within the exception, "they must have their very 
creation to be the houses or habitations of deeds."* 

§ 18. Another exception exists in regard to choses in action 
ex delicto^ as a mere right of action for a tortj or a bare right 
to file a bill in equity for a fraud committed upon the party. 
Indeed, says Judge Story, it has been laid down as a general 
rule, that where an equitable interest is assigned, in order to 
give the assignee a locus standi injudicio in a Court of Equity, 
the party assigning such right must have some substantial pos- 
session, and some capability of personal enjoyment, and not a 
mere naked right to overset a legal instrument, or to maintain a 
guit. ^ 

§ 19. Other exceptions are said to exist in regard to the full 
pay and half pay of officers in the army or navy, and also in 
regard to the profits of a public office. ^ But this ground of 
exception does not extend to pensions granted merely as a com- 
pensation for past services. The correct distinction made in 

M Lomax Ex,& Admrs. 255. ^ib. 255. ^2 Staph. Com. 264. ♦Wtns. 
on Per, Prop. (13). «2 Eq. Com, ^ 1040. g. Hd. I 1040 d. 


the <cases on this subject, said Mr. Baron Parke, is, that a man 
may always assign a pension given to him entirely as a compen- 
sation for past services, whether granted to him for life, or 
merely during the pleasure of others. But when the pension 
is granted not exclusively for past services, but as a considera- 
tion for some continuing duty or service, although the account 
of it may be influenced by the length of the service, which the 
party has already performed, it is against the policy of the law 
that it should be assignable. ' 

;§ 20. There is still another important exception which is said 
to exist, and that is in regard to things quce ipso usu consumun- 
tur ; as corn, hay, fruits, liquors, and the like. It is said that 
if such things be given specifically for life, (or other limited pe- 
riod) it is, in most cases, of necessity, a gift of the absolute 
property ; for the reason that the use and the property cannot 
exist separately. ^ ' 

One of the earliest cases in which the point is mentioned, 
though it was not necessary then to decide it, is that of Porter 
V. Tournay. The counsel for the plaintiff arguendo asserted 
that : It is inconsistent to give an interest for life in articles of 
which the use is the consumption; and Lord Alvanley, then 
Master of the Rolls, said : There has been great doubt among 
Judges, what a person having a limited use of such articles 
must do. Some learned Judges have thought they must be 
5old, and that a person so entitled is to have only the interest 
of the money — that, added he, is a very rigid construction. ^ 

In Randall v. Russell, the Master of the Rolls, Sir William 
Grant, after stating the opinion of Lord Alvanley, in the prece- 
ding case, said : My conception is, that a gift for life, if speci- 
fic, of things qu(B ipso tisu consumu7itur, is a gift of the pro- 
perty ; and that there cannot be a limitation over after a life 

' Wells V. Foster, 8 Mees. & Wells, 149. ^2 Kent's Com. (353.) 

» 3Ves. 110. 


interest in such articles. If included in a residiiary bequest 
for life, then they are to be sold,, and the interest enjoyed by 
the tenant for life. Originally we know that, by our law, there 
could be no limitation over of a chattel, but that a gift for life 
carried the absolute interest. Then a distinction was taken be- 
tween the use and the property. The use might be given to 
one for life, and the property afterward to another. A gift for 
life of a chattel is now construed to be a gift of the usufruct 
only. But, when the use and the property can have no sepa- 
rate existence, it should seem that the old rule must still prevail, 
and that a limitation over, after a life interest, must be held to 
be ineffectual. ^ 

The question was presented to the Court of Appeals of Ma- 
ryland in the case of Evans et al. v. Iglehart et al. and the 
Court said : It is conceded in all the authorities which touch 
upon the subject, that where any article of personalty of such 
a nature that its use is its consumption is specifically given tn^ 
a legatee for life, with remainder over, the legatee for life takes 
the absolute property in the thing, bequeathed.? 

In Covenhoven v, Shuler, the Chancellor said, it seemed to be 
still an unsettled question in England, whether the gift for life, 
of specific articles which must be necessarily consumed in using, 
was a gift of the absolute property, or whether they must be 
sold and the income only of the money applied to the use of 
the tenant for life.^ 

^n Madden v. Madden's Ex'rs, Judge Green, after stating 
the opinion of the Master of Rolls, in Randall v. Russell, says : 
But I must be permitted to say that my opinion, made up on 
great consideration and given judicially in an important case, 
with this opinion of the Master of the Rolls before me, was, aud 
is, that even in the case of a specific bequest of such articles for 
life, with a limitation over, the limitation is good ; that the inten- 

'3 Mer. Ch. Rep J90, ^6 Gill & Johnson. 147. ^ Paige, 132. 


tion of the testator being in such case most obvious, that the lega- 
tee in remainder shall have the benefit of the subject after the 
death of the first taker, it ought to be carried into efiect, if possi- 
ble. And it may be cflectuated by requiring the representative 
of the first taker to deliver articles of the same kind and quality, 
or to pay their value to the remainderman. This is clearly the 
civil laWy from which the principle of the common law now pre- 
vailing was taken, and is entirely just and no way inconsistent 
in its execution. ' But the opinion in that case is a dictum. 

In Harrison et al. v. Foster et al., the Supreme Court of Ala- 
bama say : When we find decisions declaring there can be no 
remainder created of ar chattel which is ordinarily consumable 
in its use, we are constrained to consider them as applying 
chiefly, if not entirely, to the particular cases then examined. 
If the intention is clearly expressed to create such a remainder, 
there seems to be no legal impediment to doing so. The case 
of Hayle v. Burrodale, 1 Eq. Ca. Ab. 361, is illustrative of 
the legality of such a bequest, and shows also what inferences 
arise when the bequest is general, instead of special. " They 
hold, therefore, that it is a question of intention, and deny 
that a gift over in such case is per se void when an intention to 
create such limitation over is clearly expressed. They admit, 
however, that the first taker is entitled to use the articles ac- 
cording to the custom of the country, or the provisions of the 
gift, and that the representatives of such taker are not liable 
for any that have been so used. 

In Patterson v. Devlin et al., Ex'rs, Johnson, J., in dehver- 
ing the opinion of the Court, said : The old rule was, that there 
could be no limitation over, of a personal chattel, after a life 
estate ; but this was founded on trite and illiberal notions, which 
readily gave way to more enlarged and liberal views of the sub- 
ject j and it is now no longer a question, that a personal chattel 

'2 Leigh: 389. ^9 Ala. Rep. 957. 


may be limited over after a bequest for life; and I may add, 
without regard to description, quantity, or quality. I know 
that an exception to the general rule prevails in regard to things 
quce ipso usu consumuntur, but that is founded on the manner 
of the bequest, and not on the incapacity of the testator to lim- 
it over, even these articles. Let us suppose, that A bequeaths 
to his friend B specifically, inter alia, one dozen of London Par- 
ticular Madeira, with a limitation over after his death, to C. 
Now here, the limitation over is absolutely inconsistent with the 
gift, for it is impossible that there can be any remainder, after 
the only use which B, the tenant for life, could have made of it. 
But if he had added in the bequest, " I know B and C cannot 
enjoy the use, and that B shall sell it, and receive and enjoy the 
interest, arising from the value of his life, leaving the principal 
for the use of C after his death," I cannot conceive why such 
a limitation should not prevail in regard to this article as well 
as to any other of a perishable nature. It is, in this way, 
as capable of enjoyment as any other chattel personal. It 
is, in effect, money itself, which is neither consumed nor worn 
out, in the use, but, on the contrary, more novel than the Phoe- 
nix, it not only renovates itself, but produces issue. It is not 
then the incapacity of the testator to make any disposition of his 
chattels, of whatever they consist, that creates the difficulty, 
but in judging from the expressions contained in his will what 
he intended ; so that all these questions are resolved into ques- 
tions of intention. ' 

In Smith v. Barham, Ruffin, Ch. J., says : When there is 
such a specific gift of what we commonly call and what the 
Master here calls " perishable articles," or of what are embraced 
under the description in the books, of " articles quce ipso usu 
consumuntury^^ it is difficult to say what is meant. I rather 
think testators seldom do mean to give such things for life only, 

' I McMullan's Eq. 462. 


and those words are annexed bj mistake to that gift, by inad- 
vertently inserting it in the clause giving other things of a dif- 
ferent kind, and which are meant to be for life only. But if the 
testator really intends such a gift to be for life, we can hardly 
imagine what rights of enjoyment he meant for the objects of his 
bounty respectively. For, to give wine, corn, sheep, or cattle 
for life, is to give the whole, if the legatee is to have any use of 
it, since the property, nay, the consumption is inseparable from 
the use : unless the testator has this further meaning, that the 
tenant for life may consume and sell, as he would himself, if he 
were living, and that whatever is left, both of the original stock 
and the increase, shall be taken as the estate of the testator, and 
go to the remainderman. I rather suppose that this is the 
meaning, for such dispositions are generally found in the provis- 
ions for wives, to whom children are to succeed, and the testator 
supposes that the mother would wish them to take all, whether 
it be his or her estate. This notion may have grown up from 
the rule of our law respecting the increase of slaves given for 
life, all the articles being given together in the same clause. 
But to the admission of such a construction there is the insuper- 
able objection that it is against the positive and ancient rule of 
the common law, that the increase is the use and profit, and 
therefore belongs to the tenant for life in whose time it accrued; 
to which slaves constitute the only admitted exception. We 
would not feel authorized, upon bare conjecture as to the testa- 
tor's intention, to carry it farther. Then, what are the respec- 
tive interests of the tenant for life and the remainderman in 
consumable chattels specifically bequeathed? From the decis- 
ions, it is far from clear. We do not know of any in our own 
courts upon the point. In England, it is apparently unsettled. ^ 

The question, however, was not directly before the court in that 

'2 Dev. Eq. 426. 


The point was presented to the Vice-Chancellor of Egland, in 
the late case of Andrew v. Andrew, and he said : Upon the 
propriety of the rule, that the gift of the use and enjoyment of 
consumable articles for life is the gift of the absolute interest, I 
do not know that I have ever thought, because I have consid- 
ered it as settled in this court for many years. That such is 
the rule, appears to me clear, and 1 must act upon it. ^ 

The point seems to have been so decided in the State v. War- 
rington^; and the general exception was asserted in Merrill v. 
Emery. ^ In the later case, however, of Dorr v. Wainwright, 
it is said : If the property be such as must be necessarily con- 
sumed in the enjoyment, as wine or provisions, the gift over 
may be void, unless a portion of the property should happen to 
remain, and be in a condition to be distinguished and identified, 
at the death of the first taker.'* This latter is but a dictum^ 
and yet it seems to commend itself to a sense of plain justice. 

§ 21. The reason of the exception precludes the idea that 
there is any distinction between a gift of the use of such arti- 
cles, and a gift of the articles themselves; for that reason, as 
already stated, is, that the use and the property cannot exist 

§ 22. But, admitting the exception, let us inquire into its 
extent. In Dunbar's Ex'rs v. Woodcock, Scott, J., in deliver- 
ing the opinion of the Court, says, That the rule which gives to 
a legatee for life the absolute property in articles consumable in 
the use, is applicable only to such as the testator intended for 
consumption, not to such as in the ordinary course of business 
are for sale.^ So, in Patterson v. Devlin et al., ex'rs, Colcock, 
J., says : I can well imagine a case in which articles, which are 

M Collier, 691. ^i Harrington, 55. ^^q pjck. sjo, 

*Ib. 330. See, in regard to the general exception, Gentry v, 

Jones, 6 J. J, Mar. 154, and case reported, 10 Yerger, 30. 

no Leigh, 653. 


consumable In the use, may be required to be sold for tlie benefit 
of the remainderman ; as if, for instance, a huckster, who deals 
in such articles, should leave his whole stock to one for life, with 
remainder to another, in such a case it would not be expected 
that he intended the articles to be used by the tenant for life, 
for they would perish before he could consume them all, and 
thus be of no value or use to either of the parties in interest. ' 

It might seem from some of the books, that there is a distinc- 
^tion in regard to this exception, between a specific gift of articles 
'Consumable by use, and a general gift of such articles — that in 
the first case, a gift of them for a limited period is an absolute 
gift; whilst in the second case, a limitation over after a partial 
gift of them is valid. It will appear, however, from an exami- 
rtation of the cases, that there is no distinction in principle, but 
merely in intention ; and that, therefore, where the same inten- 
tion is held to exist, the same principle is applied, whether the 
gift be general or specific. The distinction is, that when an in- 
tention appears that consumable articles shall be enjoyed speci- 
fically by the first taker, the gift is absolute; and that intention 
is held to appear from a gift of them specifically, unless it be 
controlled ; but that when an intention appears that consumable 
articles shall not be enjoyed specifically by the first taker, then 
the gift of them for a limited period, is not an absolute gift; and 
this intention is held to appear from a general gift, though the 
presumption may bC' controlled by small indications to the con- 

In Covenhoven v. Shuler, the Chancellor said : When there 
is a general bequest of a residue for life with remainder over, 
although it includes articles of both descriptions, (consumable 
and unconsumable,) as well as other property, the whole must 
be sold and converted into money, and the proceeds must be in- 
vested in permanent securities, and the interest or income only 

»1 McMuIlan's Eq. 470. 


is to be paid to the legatee for life. The case of De Witt v»- 
Schoonmaker^ seems to be in collision with this principle ; but 
Mr. Justice Tompkins, who delivered the opinion of the court" 
there, does not appear to have noticed the distinction between the 
bequest of a general residue and the bequest of specific articles.^ 
In Patterson v. Devlin et al. Exrs, Johnson J., after asserting; 
that a gift specifically of consumable articles, for life, is an 
absolute gift, proceeds : This case then, it will be perceivedy 
turns upon the question, whether a different rule is to be applied 
to cases, when the bequest is by a general residuary clause of 
articles of this description.^ Let u«, then, examine how far a 
course of reasoning, deduced from the nature and reason of 
things, will aid us in this enquiry ; and let us suppose, by way 
of illustration, that the testator, having an only child, for whom 
alone, it was apparent, he was anxious to provide, and that, by 
one general, sweeping clause, he gave to him his whole estatCy 
which turned out to consist of lands, slaves, live-stock, imple- 
ments of husbandry, and of household furniture, provisions, &C.5. 
but in the event of his death without issue living, all should go 
over to another^ Now, if I were left without any other clue to 
his intention, and permitted to judge from my own knowledge of 
the motives to human actions, I should conclude that the tes- 
tator intended that his child^ the devisee or legatee, should enjoy 
this legacy as a whole, and that he intended that only so much 
as was left, after he had enjoyed it, should go over to the 
remainder-man, without any accountability on the part of the 
child, further than that he should use the whole in a husband- 
like manner. In such a case, the use of the destructible arti- 
cles would be necessary to the enjoyment of the whole, and by 
their unity they are identified with those that are indestructible. 
But let us take the case under consideration to illustrate the 

'2 Johns. Rep. 243. 

-2 Paige, 132; see also Cairns v. Chaubert, 9 Paige, 163. 


opposite view. Here, the testator had provided mo^t amply for 
his son, Robert Smyth, Jr., by a specific bequest of land and 
negroes, things capable of use and enjoyment of themselves, 
and so he had done for all others for whom it was his duty and 
inclination to provide ; but knowing that there were many little 
odds and ends, which it would be difficult, if not impracticabloj 
to enumerate, he sums them all up in the expression of " the 
remainder of my personal estate," and directs its distribution ; 
and in the event of the death of his son, without leaving issue^ 
be directs that it shall go over to the hands of the plaintiff. 
The question, then, arises. What did he intend with regard to 
this limitation over, which consisted of a commixture of things 
in some degree indestructible, of those that would be deteriora- 
ted, and others consumable in the use 1 Why, I should say 
that there was nothing inconsistent with the limitation over, 
and the bequest for life ; for, without the addition of something 
else, they might be useless even to the tenant for life. What 
benefit would he derive from a stock of provisions which must 
necessarily perish before he could use them himself? It cannot, 
then, be concluded, that the testator intended they shouM be 
used only in this way. By converting such articles into money, 
the tenant for life might have all the enjoyment of which the 
thing was capable, preserving the principal for the remainder- 
man, and thus fully effectuating the intention of the testator. 
The distinction between a specific bequest of a chattel, consu- 
mable in the use, and a bequest in a general residuary clause, 
consists, according to this course of reasoning, in the inconsist- 
ency of a limitation over, in the first case, and the consistency 
and practicabihty in the last. Thus much for my own reason- 
ing. Let us now examine whether this conclusion is supported 
by the rules drawn from decided cases. He then cites Howe v. 
Earl of Dartmouth, 7 Ves. 137 ; Fearns v. Young, 9 Ves. 551 ; 
Porter v. Tournay, 3 Ves. 310 ; Randall v. Russell, 3 Mer. 
190; and Walcott v. Cady, 5 Johns. C. R. 334; and adds : 


In all my researches on this suhject, I have not been able to 
find the principle of these decisions in any manner called in 
question, or controverted, in any book, case, or record ; as au- 
thority, they are, to a certain degree, binding; and, as founded 
in reason and justice, they are imperative. ^ 

In Smith v. Barham, the Court say: It seems clear that 
"when a residue is given, as such, it is to be sold by the executor. 
The several things are not given, the testator supposing them 
not worth giving as corpora, not knowing how much, or which of 
them it may be absolutely necessary to sell for the payment of 
debts and pecuniary legacies. The gift is then of the nett bal- 
ance of the proceeds after the debts are paid, which implies a 
sale. And if this were not the case, when there is an immedi- 
ate gift of the residue after the d^bts are paid, it must be when 
there is a limited use given in the surplus to one for life, and 
then to another ; for then there is nothing to shew that as to 
the consumable articles the testator meant to give the particu- 
lar legatee that use which consists in consumption ; and as 'they 
are complicated in the same clause with the others of a different 
nature, the whole must go together; and as a part must be sold, 
the whole must, and the first taker have the profit only. For 
upon the intention it is taken that the benefit is to be divided 
between the legatees in the whole subject, which cannot other- 
wise be, for if the tenant for life does not use the perishable ar- 
ticles, he gets no benefit ; and if he does use them, the legatee 
over gets none.^ 

In Robertson et al. v. Collier & Wife et al., the Court say : 
In the case before us, the devise was not strictly of a residue, 
but of an estate. There was no bequest of corn, ploughs, carts, 
horses or mules, but of an estate comprehending all these par- 
ticulars, as well as land and slaves ; and it seems to me to come 
within the reason of the rule which has been applied to the be- 

■'1 McMulIan Eq. 463. ^2 Dev. Eq. 428. 


quest of a residue. ' And accordingly it was adjudged that the 
limitation over was good as to every species of the chattels. 

In Harrison et al. v. Foster et al., Goldthwaite J., in delivering 
the opinion of the'Court, says : A bequest of perishable chattels 
to one for life, with remainder to another, without some direc- 
tion as to the mode of enjoyment shows the intention of the tes- 
tator that each taker shall have the same mode of enjoyment, 
and this can only be by a sale of the chattel, or by charging 
the first taker with the value. This, in effect, is the general 
rule, stated in Porter v. Tournay, 3 Ves. 311, and -Randall v. 
Russell, 3 Mer, 190, though the qualification of the rule by the 
intention of the testator is not stated, nor was it necessary to be 
stated, as in neither case was the point presented for decision. 

The decision in Robertson v. Collier (1 Hill Eq. 370) certainly 
seems irreconcileable with the principle as stated by Lord Eldon ; 
for, in our judgment, the testator there seems to have disregard- 
ed the manner in which the estate for life should be enjoyed ; 
but the decision turns upon the supposed distinction between a 
specific bequest and the bequest of a general estate or a general 
residuum. The distinction seems not on the obiter dicta of Lord 
Alvanley and Sir William Grant, in the cases of Porter v. Tour- 
nay and Randall v. Russell previously cited ; but it is denied in 
Madden v. Madden's ex'rs, (2 Leigh, 277) and in Evans v. 
Iglehart, 6 G. & J. 171 • For ourselves, we are entirely satisfied 
the true principle is stated by Lord Eldon in Howe v. Dart- 
mouth, and that when the intention is otherwise clear, it makes 
no difference whether the bequest is specific, or general, or of a 

It seems that, in the opinion just stated, there is a misconcep- 
tion of the distinction between what is called a specific and a geii- 
eral bequest. The truth of this proposition appears from the opin- 
ion of Lord Eldon, ^ a part of which is relied on by the Court ; 

a Hill Ch. Rep. 374. 29 Ala. 958. 

ni\ Howe v. The Earl of Dartmouth, 7 Ves. (147.) 


but still more clearJ j from the case of Pickering v. Pickerings 
which will be presently quoted. And there seems to be another 
misconception in the case, for the decision in Robertson et aL v. 
Collier and Wife ef al. does not, as stated, turn upon the sup- 
posed distinction between a specific bequest and the bequest of 
general estate, or a general residuum^ as understood by our 
Court : but it turns upon the supposed intention of the testator. 
It is true that the distinction is denied by Judge Green in Mad* 
den V. Madden's Exrs., but that which is contended for in re- 
gard to general bequests is admitted by the learned Judge, and 
specific bequests are placed by him on the same footing. 

In Patterson v. Devlin et al. Exrs., Colcock J. said : But it 
is said that there is a distinction between a specific gift of arti- 
cles, the use of which consists in the consumption, and a gift of 
them in the residuary clause ; that in the first case it is admit- 
ted they are not to be accounted for by the tenant for life. But 
in the latter they are not intended for his benefit alone, and 
therefore are to be sold and the interest to be enjoyed during 
his life, and the principal to go over at his death. In the first 
place, I deny that any such decision was ever made, though I 
admit such dicta are to be found. And in the second place, if 
such a decision could be found, I should not be disposed to sub- 
scribe to its authority, though I should like to see the reasoning 
on which it would be attempted to support it. Where there is 
no doubt of the intention of the testator to give the thing, it is 
admitted on all hands that it depends on the nature of it, wheth- 
er the tenant for life is to be answerable over to the remainder- 
man for it. Now, if it depends on the nature of the article, 
how can the manner or mode of giving it afiect the question? 
A testator gives to one of his sons, among other things, fifty 
bushels of corn ; it is admitted he means him to use it. He 
gives to two others the rest and residue of his property, among 
which, there are one hundred bushels of corn, so that each takes 
fifty bushels ; the estate is limited over ; can any reason be 


given why it should be determined that the first should eat his 
corn, that would not apply to the other two? The nature of 
the article is not changed by the mode of giving, and I cannot 
see anything in the mode of giving to create a difference in the 
intention of the testator as to the sons. Each is to get fifty 
bushels of corn ; why not the latter to use that which is left to 
him, as well as the former 7 ' 

In Evans et at. v. Iglehart et al. Judge Dorsey, in deliver- 
ing the opinion of the Court, says in relation to this point : — 
In Prest. Leg. 95, 96, it is stated " that a specific bequest of 
things which are consumed by their use vests in their legatees 
absolutely, though given for life ; if they pass as a residue, 
then they must be sold, and the produce vested, and the interest 
paid to the tenant for life." In 2 Wms. Ex'rs, 858, the same 
position is asserted, but both these writers by referring as their 
authority to Randall v. Russell, 3 Meriv. 190, do nothing more 
than repeat a loose dictum of Sir William Grant, in a case in 
which he made no decision, and where no question arose on a 
disposition of a residue ; the controversy relating to a specific 
legacy. And the distinction between specific bequests and the 
bequests of a residue, receives no sanction from the doubt ex- 
pressed by Lord Alvanley in Porter v. Tournay, 3 Ves. 310, 
adverted to by Sir Wm. Grant ; and in Ross. Leg. 209, it is 
said that " the point, however, still suspends in doubt, as at the 
time when Lord Alvanley determined the case of Porter v. Tour- 
nay. But admit the distinction to have been solemnly adjudi- 
cated in England, although in point of fact no such adjudication 
can be found, upon what is it founded? Why, as the afore- 
mentioned chancery rule converts the entire residue into money, 
there is no objection to limiting over such consumable articles ; 
they are not to be specifically enjoyed or consumed by the lega- 
tee for life. The only reason assigned why a specific bequest 

»McMulldn's Eq. 471, 


of that whicb is consumed by the use, vests the absolute property 
in the legatee for life,, is the absurdity of limiting over that to 
another, which is wholly consumed by the first legatee, and of 
which, therefore, there is nothing left that could be limited over. 
But as in Maryland the articles composing a general residue 
are to be specifically enjoyed, the same principle that would 
vest the absolute property of a specific bequest of consumable 
articles in the legatee for life, would vest a like estate in a simi- 
lar legatee in things consumable,, part of a general residue* 
Nay,- the reason is stronger in the latter case than in the former, 
for if the Court cannot in the case of such specific bequest, in 
order to avoid the total rejection of the words of limitation 
over, infer an intention of the testator, that the thing bequeath- 
ed should be sold and invested ; a fortiori^ they cannot infer 
such intention, when, as regards a bequest of a residue, no part 
of the limitation over is rejected as wholly inoperative, but its 
operation embraces all those parts of the residue not consumed 
in the use. * 

In Pickering v. Pickering the Master of the Rolls said : No 
doubt the general rule is this : thart if the residue of an estate 
be given to one for life, with remainder to another, then it being 
clearly the intention of the testator that the person in remainder 
should have somethings the Court, in order to arrange the rights 
of the two parties, adopts the rule so often referred to and not 
disputed ; but if the Court finds in the will sufficient to show an 
intention of the testator, that the legatee for life should enjoy 
the property in the state in which it stood at the time of tne 
testator's death, then that intention must be carried into effect. 
And he added : There is an obscurity which frequently arises 
in these cases from the use that is made of the term " specific 
legacy :" when the word " specific " is used on such an occasion 
as this, I do not think it is used in the ordinary sense in which 

'6 Gill & Johns 197. 


" specific " is applied to a legacy — it is used to this extent only, 
that the property is to be specifically enjoyed. That is the 
meaning of the term,, and is the view taken by Sir Juhn Leach, 
and which has since been acted on by the Lord Chancellor. ' 

And upon this point Judge Nott, in delivering his. opinion in 
the case of Patterson v. Devlin et al. Ex'rs, says : The distinc- 
tion appears to me to be a reasonable one. If a person should 
give a demijohn of wine, or a hundred- bushels of corn, it would 
be presumed to be for immediate use and consumption, and a 
limitation over would be inconsistent with th^ nature of the »ift. 
But when it consists of the residue of an estate, no such infer- 
ence would be drawn from it,- though that residue might consist 
partly of consumable articles. And he adds : I do not consider 
it as depending upon the employment of the word residue. If 
a person should give a hundred bushels of corn to one, and a 
hundred to another, and the residue to a third, the latter would 
be equally specific with the former. A residuary bequest is 
that which consists of the residue of an estate, and not of a par- 
ticular article.^ 

In re Kendall, a testator bequeathed to his mother " all and 
everything I die possessed of, namely, money at my bankers', 
Messrs. C. & Co., as contained in my letter of credit of 2000^., 
now here, and bills of Messrs. C. & Co.; my carriage, now here; 
my plate, books,, clothes, harness and sundrieSj-as existing here, 
and in custody of Messrs. McCracken of Old Jewry, London, 
for her sole use and benefit. And lest there should be any dis- 
pute, I declare again, that I leave everything I die possessed of 
to my dearest mother, for her entire and sole use and benefit, 
as stated above. The testator was in Italy at the date of his 
will, and there died. He was possessed of considerable sums 
of stock in the public funds at his death. It was held that the 
gift to the mother was a general residuary bequest. ^ 

'2 Beavan, (57.) n McMuUan's Eq. 468. 

^9 Eng. L. &Eq. Rep. ]96. 


But without looking further into the cases, we may submit 
these propositions as containing the better doctrine in regard to 
the extent of the exception that consumable articles cannot be 
subjected to partial and subsequent interests : 

First. That chattels personal which are consumable by use 
may be limited over after a partial limitation of them ; provided 
they are not to be specifically enjoyed. Second. That when 
they are to be specifically enjoyed by the first taker, they 
may still be limited over ; provided an intention appears to 
charge him with the valfte. 

And this seems to be suflScient of this jnatter here ; for the 
cases in regard to the intention of the donor as to the mode of 
enjoyment, together with the rights of the respective limitees, 
will come up for examination in another place. 

§ 23. Chattels personal are subject to the same modifications 
of title that real property is^ with two exceptions. 

§ 24. The first exception is that an estate tail cannot be 
created in them ; and the reason is that the statute de donis 
does not include them, but extends only to " tenements." 

§ 25. The second exception is that generally an interest simi- 
lar to a fee conditional cannot be created in them ; and the rea- 
son is, that anciently a gift of chattels personal to a person 
was an absolute gift ; the words " heirs," or " heirs of his body," 
or " executors and administrators," had no effect whatever upon 
the quantity of interest ; nor was the quantity of interest af- 
fected by the use of restrictive expressions, as " for life," or 
^^ for years." And when the courts departed from the ancient 
doctrine and allowed partial interests to be created, they could 
not allow that " heirs of the body " was a restriction upon a gift 
which was and still is an absolute one, in all cases, unless it be 
restricted; because as chattels personal generally do not de- 
scend, heirs of the body could not take, and therefore the words 


were simply nugatory. No limitation over, indeed, after a gift 
even of land to a person and the heirs of his body can be made 
at the common law, ^ for it is held that the whole estate, in such 
case, passes under the gift, subject only to a possibility of re- 
verter. But be the reason what it may, it is settled beyond 
dispute, that whenever a gift of chattels is so made that it 
would create an estate tail under the statute de donis, if the 
subject were real property, such gift passes the absolute title to 
the chattels.^ 

§ 26. The difference between real and personal property in 
this respect is, that when a tenant in tail dies without having 
destroyed the entail, the realty descends to his heirs per formam 
doni, but when personal property so limited vests in a qitasi 
tenant in tail he takes the absolute property, and upon his death 
intestate it passes to his personal representatives. The simi- 
larity is, that by creating life estates, both kinds of property 
may be rendered unalienable for the same length of time. And 
hence, though chattels personal cannot be entailed, yet they may 
be so limited as to answer the purpose of an entail for a limited 

§ 27. There is, at least, an apparent exception to the rule 
that an interest similar to a fee conditional in land cannot be 
created in chattels personal. The exception exists in favor of 
personal annuities. In Turner v. Turner, Lord Loughborough 
said : An annuity, then, when granted with words of inherit- 
ance^ is descendible ; but as to its security is personal only : it 
may be granted in fee ; of course it may as a qualified or condi- 
tional fee. But it cannot be entailed, Co. Lit. 20, and conse- 

'See Mazyck v. Vanderhost, 1 Bailey's Eq. R. 55, for a learned note 
by the Reporter, who discusses the subject, and asserts the ancient 
law to have been otherwise. 

22 Fearne's Rem. (463); Co. Lit. Hgr. note (7); 1 Bailey's Eq. R. 
48, et ubique. 



quentlj there can be no remainder of it; for there can be no 
remainder- of property which is not within the statute de donis, 
* * * * It is argued that as there could not be a remain- 
der, there could not be a limitation by way of executory devise. 
I cannot see the reason of this, provided the executory devise 
was within the common rules of executory devises o * * ^ 
Another, ohjvraoter of this kind of property is^ that an annuity 
must notitend to a perpetuity, for a fee simple conditional must 
end or become absolute in the life of a particular person. * 

The last proposition is not true ; for in NeviPs case, the rules 
which govern fees conditional are stated, and it is there said that 
if the donee had issue within the gift, he might alien, and if he 
died without aliening, his heir inheriting might alien, and so on : 
but if at any time there was no heir per for mam donij the land 
reverted, unless it had been aliened after issue within the gift 
had been born. And it is added in the report : These rules yet 
hold place in case of a grant of an annuity to one and the heirs 
malcs of his body, and all other inheritances not within the 
Statute De donis conditionalihus,^ 

§ 28. The statute of uses has no application what -.v^er to 
chattels personal, and of course no limitation can be made of 
them by virtue of a power which exists by virtue of that statute ; 
but subject to that exception, limitations of chattels personal 
may be made by virtue of powers, and they are subject to the 
same general rules that govern limitations of real property 
made in that way. 

§ 29, Limitations of chattels personal may be either abso- 
lutely, or upon condition (a). 

U Bro, Ch. Rep. ^^325.) 27 Rgp. 35. 

(a) In Shaw et al. v. Shaw et ah., A promised to give his son a cer- 
tain slave, upon condition that he would give the slave to a certain 
grandson, m addition to his distributive share, and the son promised : 
afterwards by will A gave the slave to the son, and the son gave t )e 
negro to the grandson, and died intestate. It is held that the grandson 
must account as for an advancement by his father. —6 Hump. 418. 


§ 30. The general ductrine of devises upon condition is, that 
if the condition upon which the devise depends be precedent. 
and be illegal, contrary to public pohcy, contrary to good mor- 
als, uncertain in itself, or impossible, the limitation is void ; but 
if, on the contrary, the condition be subsequent, and be illegal, 
contrary to public pohcy, contrary to good morals, uncertain in 
itself; or if it bo repugnant, or be impossible in its creation,- or 
subsequently become impossible by the act of God, of law, or 
the party who is entitled to the benefit of it, then the limitation 
remains as if no such condition had been imposed. - 

§ 31. But there are exceptions to this general doctrine in its 
application to bequests of chattels- personal. 

§ 32. Thus, when a condition precedent to the vesting of a. 
legacy is impossible, as that the legatee shall drink up all the 
water in the sea, the condition is void, and the bequest will take 
effect, as if no condition had been imposed. This is the doc- 
trine of the civil law, and has been adopted by the Courts of 

§ 33. " If, indeed, the iinpossibility of the condition were un- 
known to the testator, as where a legacy is given on condition the 
legatee marries the testator's daughter, who happens then to be 
dead ; or where the impossibility arises from a subsequent act of 
God, as if she be living at the date of the will, but dies before 
the marriage can be solemnized; the impracticabiUty of the per- 
formance will be a bar to the claim of the legatee ; in cases, at 
least such as those mentioned, where the performance of the con- 
dition appears to be the motive of the bequest."- 

§ 34. So, also, when testators, through ignorance, have re- 
quired ajts to be done that have been performed, or events to 

'2 Williams' ExTs, (786.) -2 Williams^ Ex'rs, (786.) See, 

also, 1 Roper on Le^'. (756.) 


happen which have taken place, the act or event is classed 
as an impossible condition, and the legacy is taken without qual- 
ification. Thus, if a legacy be given to B if he remit a debt, 
and he has already remitted it ; or if a certain ship shall return, 
and the ship has already returned, the legacy is without con- 
dition. ^ 

§ 35. And so generally when the condition precedent becomes 
impossible, either from the act of God, or the party making the 
bequest, the bequest is taken as if no condition had been an- 
nexed to it. ^ 

§ 36. Thus, also, when the condition precedent does not con- 
cern anything malum in se, but is merely malum prohibitum, or 
contrary to public policy, or contra bonos mores, the bequest is 
single and good ; for the condition not being lawful, it is held in 
the phrase of the civil law pro non adjecta. An example of this 
is furnished by the case of Brown v. Peck.^ In that case, Mr. 
Sparks bequeathed to his niece Rebecca 15/. for mourning, and 
if she lived with her husband, 21. a month, and no more ; but if 
she lived from him and with her mother, then she was to re- 
ceive 5/. a month. Lord JYorthington was of opinion that Re- 
becca was entitled to the monthly payment of 5/., observing that 
the condition being both impossible at the time of its imposition, 
and contra bonos mores, the bequest was simple and pure. ^ 

§ 37. fn regard to marriage as a condition precedent, the 
doctrine is, that conditions which require or prohibit marriages 
with particular persons, or limit marriages to particular families, 
or which prescribe a particular place for the performance of the 
ceremony, or a particular lawful ceremony, or which prescribe 
that the marriage shall not take place whilst the legatee is under 
twenty-one years of age, or other reasonable period, or that it 
shall not take place without the consent of trustees, guardians, 

'1 Rep. on Leg. (756.) ^b. ^l Eden, 140. *! Roper, (756.) 


and the like, are valid and must be complied with in order to 
vest the legacy. And when such a condition precedent be pre- 
scribed, it matters not whether there be or be not a limitation 
over in case of the non-performance of the condition, for the rule 
is the same in both cases. ' 

§ 38. These exceptions concern conditions precedent ; but 
there are exceptions also to the doctrine of conditions subse- 
quent when applied to bequests of chattels personal. Thus, 
when there are conditions subsequent in partial restraint of mar- 
riage, and there is no limitation over, the violation of the condi- 
tions does not defeat the interests to which they are annexed. 
But if there be a direction that the legacy, in the event of a 
breach or non-performance of such a condition, shall go over to 
another legatee, the condition is obligatory; for the court is 
bound to protect the interest of the party in whose favor the 
ulterior limitation is made.^ A mere gift, however, of the resi- 
idue to a particular person will not be considered such a limita- 
tion over, unless the testator also directs the legacy to fall into 
the residue in case of the breach of the condition.^ 

§ 39. And so where legacies are given to persons upon condi- 
tions not to dispute the validity or the dispositions of wills, the 
conditions are not in general obligatory, but only in terror em. 
If, therefore, there exist probabilis causa litigandi, the non-ob- 
servance of the conditions will not be forfeitures.* The reason, 
adds Mr. Roper, seems to be this : a Court of Equity does not 
consider that the testator meant such a clause to determine his 
bounty, if the legatee resorted to such a tribunal to ascertain 

U Rop. on Leg. SOT, et seq. 

2As to the reason of the rule, see Lloyd v. Branton, 3 Mer. 117. 

32 Williams on Ex'rs, (792.) See further, 1 Jar. on Wills, (839,) et 
seq.; Lloyd v. Branton, 3 Mer. 11 7] Colliers" Ex'r v. Slaughter's AdmT, 
20 Ala. 263; Hoopes v. Dundas, 10 Barr, 75. 

^Powell v. Morgan, 2 Vern. 90: Lewes v. Lewes, 6 Sim. 304. 


doubtful rights under the will, or liow far other rights might be 
affected by it ; but merely to guard against .vexatious litigation. 

§ 40. But when the acquiescence of the legatee appears to be 
a material ingredient in the gift, which is made to determine up- 
on his controverting the will, or any of its provisions, and in 
either of those events the legacy is given over to another person, 
the restriction no longer continues a condition in terrorum, but 
assumes the character of a conditional limitation. The bequest 
is only quosque, the legatee shall refrain from disturbing the 
will. And if he controvert it, his interest will cease, and pass 
to the other legatee. ^ 

§ 41. If, howeverj the limitation over upon disputing or claim- 
ing against the will have none other effect than what the law 
would produce, if the express disposition had been omitted, the 
condition will be in terrorem only. So that if a legacy, to 
which such a condition is annexed, instead of being given to a 
stranger, be limited over to his executors^ who would be entitled 
to receive it as part of his assets, without any such particular 
direction, the testator will be considered as meaning no more by 
the declaration, than if he had said nothing upon the subject ; 
and then the bequest falls within the rule of construction before 
mentioned, in regard to conditions in terrorem.^ This is true 
also in regard to conditions in regard to marriage previously 
mentioned, and accords with the maxim : expressio eorum quce 
tacite insant nihil operatur. But if, as stated in another place, 
the testator direct the legacy to fall into the residue, upon a 
breach of the condition, and dispose of that fund, the residuary 
legatee will be a particular legatee of the individual legacy, and 
as such will be entitled to it, if the condition be broken. 

§ 42. It is said : But there is a class of cases where legacies 
n Rop, on Leg. 530-31. Hb. 531. 


given upon condition that the legatee shall release the executors 
and all claim on the testator's estate, or that he shall not dis- 
turb the trusts of the will, in which under circumstances, the 
condition has been enforced ' ; it will be found, however, that the 
doctrine established in such cases is, th«,t the conditions are 
merely in terrorem^ unless there is a limitation over, or unless 
the legatee is put to his election to claim under the will or 
against it — or unless, as Mr, Jarman says,^ in regard to condi- 
tions precedent to marry with consent, the legatee takes a legacy 
or provision in the alternative of his disputing the will or refus- 
ing to make the release. 

§ 43. The opinion of the Vice Chancellor In re Dickson, may 
be cited here in explanation of this matter. In that case a tes- 
tator bequeathed 10,000/. in trust for his daughter for life, but 
in a codicil, after mentioning the bequest, he declared : '' but 
now finding that she contemplates remaining in a Roman Catho- 
lic Convent, and becoming a nun, I consequently hereby declare 
that in the event of her carrying out her intention of taking the 
veil, becoming a nun, continuing to reside in a convent, or in 
any other way associating herself permanently with any Roman 
Catholic establishment of that nature, she shall forfeit all claim 
to or benefit from the said sum of 10,000/., and I hereby in that 
case revoke the said bequest," &c. The Vice Chancellor Rolfe, 
after holding that the intention of the testator was a lawful one. 
said : The intention, it is admitted, is a lawful intention, and 
expressed so as to leave no doubt as to what it is. Why is the 
Court not to carry it into effect] The ground relied on by the 
petitioner is a supposed rule of law, that wherever there is a 
legacy given absolutely in the first instance, but followed by a 
declaration that it shall be forfeited, or that it is revoked, if the 
legatee does not comply with some condition subsequent mention- 

*See Note (2), Powell v. Morgan, 2 Vern. 90. 
M Jar. Oil Wills, (839.) 

2124 c (^ 


ed in the will, there, unless on the non-compliance with euch 
condition the legacy is given over, the clause of forfeiture or re- 
vocation is inoperative, being treated as a mere idle threat to in- 
duce the legatee to comply with the condition, and not really to 
affect the bequest. I do not, however, think that any such rule 
of law exists. The argument in favor of the existence of such 
a rule was derived from a supposed analogy between the case 
put, and a case of a bequest which the testator has declared to 
be forfeited on the marriage of the legatee. In such cases there 
are, no doubt, very numerous authorities for the proposition that 
the legatee takes an absolute legacy, and the condition subse- 
quent attempting to defeat it upon the legatee contracting mar- 
riage is void. The condition is said to have been introduced 
into his will by the testator merely in terrorem, and not to have 
been intended by him really to affect the interest of the legatee. 
It is impossible to refer to the numerous cases on this subject, 
without feeling that the Judges, in deciding them, have never 
felt very sure of the ground on which they were treading. It 
is, however, certain that the decisions have proceeded on max- 
ims of the civil, and not the common law. Now, by the civil 
law, any condition in restraint of marriage was considered as a 
conditio rei non licitcB, and therefore, in whatever form imposed, 
it was held to be null and void. The subject is discussed in the 
35th book of the " Pandects," c 33, to which it is sufficient to 
refer. Inasmuch, therefore, as legacies may be sued for in the 
ecclesiastical courts, where the rules of the civil law would pre- 
vail, this court has felt itself bound to conform to that law in 
order that there might not be a conflict of decision in the tw^ 
courts. In cases, therefore, where a legacy has been given cou- 
pled with a condition that the legatee shall not marry, there this 
court has felt bound that the testator could not really have 
meant what he has said ; or if he did mean it, then that he 
meant to prohibit what he had no right to prohibit, and so that 
his expressions must be considered as merely indicating his 


wishes, and so far as they import a forfeiture of the bequest, 
used merely in terror em. The rule itself, and the reasoning 
upon it, and the grounds which have been relied on as taking 
cases out of its operation, have been often stated to be very un- 
satisfactory. But the rule is established, and it would be very 
unsafe to call it in question in cases to which it applies. But I 
do not think that this is such a case. The rule depends for its 
principles not merely on the form in which the intention is ex- 
pressed — not merely on its being a condition subsequent, but 
also on the nature of the condition which is to determine the 
legacy. If the condition, being a condition subsequent, be in 
the class of those which impose a restraint considered by the 
civil law as unlawful, there if the condition be a simple prohibi- 
tion, or a prohibition with a declaration of the forfeiture of the 
legacy without more, the rule of civil law prevails, remittitur 
conditio^ and the legacy stands as if no such condition had been 
found in the testament. If, on the other hand, there be some- 
thing beyond a condition and clause of forfeiture — if the forfeit- 
ed legacy is on breach of the condition given over ; or, which 
is the same thing, is directed to become part of the residue, and 
that residue is given over — then this court disregards the doc- 
trine of the civil law and acts on its own ordinary rules. The 
legatee over becomes entitled and the original legatee forfeits 
his legacy. It is not necessary to inquire whether this doctrine 
can, under any circumstances, be applicable to the case of a 
condition precedent. The same rule that prevails in the case 
of legacies which are revoked on the marriage of the legatee, 
prevails also in the case of a legacy made void in case the lega- 
tee should dispute the will of the testator— and on the same 
ground, viz: that the condition has been considered (whether 
justly or not it is unnecessary to inquire) as contrary to the 
pohcy, or according to the language of the Touchstone, p. 132, 
'' against the liberty of law." Such a condition, therefore, like 
a condition in restraint of marrriage, has been considered as a 


conditio rei non licitce, and so it has been treated as a mere 
clause in terrorem, unless where there has heen a gift over, on 
the condition being broken. 

Now, in the present case, there is certainly no gift over. 
There is merely a revocation of the legacy on the happening of 
the event which has occurred, namely, the legatee associating 
herself with a Roman Catholic establishment. If, therefore, 
this was, like a condition in restraint of marriage, or a condition 
not to dispute the will, to be treated as a conditio rei non licitcB^ 
the doctrine to which I have referred would apply. The testa- 
tor would have been treated as merely expressing strongly his 
wish on a subject on which he had no right to impose restraint, 
and that expression of wish would have been inoperative. But 
the condition here imposed is a perfectly lawful condition. 
There is neither principle nor authority for saying that a parent 
may not make a provision for his daughter cease on her taking 
the veil, or becoming permanently connected with a convent. 
The condition is a conditio rei licitcey and so the rules derived 
from conditions in restraint of marriage or otherwise against the 
liberty of the law are inapplicable. * 

§ 44. In Clark v. Parker, Lord Eldon criticised the calling 
of these conditions, conditions in terrorem — for he spoke of 
them as conditions " which are supposed to alarm persons when 
we know they contain no terror whatever."^ But the phrase 
seems to be very expressive and quite correct. 

§ 45. These doctrines, then, in regard to bequests of chattels 
personal, were derived by the courts from the civil law, and are 
in derogation of the principles of the common law. They seem, 
therefore, to govern bequests alone, whilst limitations of chattels 
personal upon condition, when made by deed, whether directly 

'1 Eng. L. & Eq. Rep. 149; see also Lewes v. Lewes, 6 Sim. 304. 
219 Ves. 13. 


or by \>aj of trust, seem to be still subject to the principles of 
the common law. 

§ 46. It is a rule governing limitations of real property, at 
the common law, though not by way of use or by devise, that if 
a particular estate be limited upon condition with a limitation 
over after the expiration of the particular estate, the limitation 
over destroys the condition 5 but this rule does not apply to 
chattels personal. 

§ 47. Before quitting this subject, two points may be men- 
tioned, which were decided in Kirkham, Ex'or, et al. v. Mason 
et als. It was held in that case, that where the payment of a 
legacy is made to depend on the estate being worth a specified 
amount after the debts are paid, the point of time at which the 
value of the estate is to be ascertained is not that of the testa- 
tor's death, or of the probate of his will, but that at which the 
assets are applied in due course of administration to their proper 
objects, in conformity with the directions of the will. It was 
also held there, that if the payment of a legacy is made to de- 
pend on the condition that the estate in the hands of the execu- 
tor is worth a specified amount after the debts are paid, the dis- 
tributive share of the widow, so far as it exceeds her legacy, is 
not to be estimated in ascertaining the value of the estate. ' 

§ 48. The questions now arise, Who may make these limita- 
tions of chattels personal? and to whom may they be made? 
The general answer is, that any person may make them, and 
that they may be made to any person, natural or artificial. 

§ 49. There are exceptions, however, to the general rule. 
Thus, the gift of an infant is, at least, voidable ; and that of an 
idiot or lunatic is absolutely void. But a lunatic, during a lucid 
interval may make a valid conveyance, for then he is of " dispo- 

M7Ala. ia4. 


sing memory." And an infant, by the common law, may make 
a testament of chattels, if a male and of the age of fourteen, 
or if a female and of the age of twelve years. But this matter 
is regulated by statute. As to powers, Sugden says, " that an 
infant cannot exercise a power over real estate^ unless it be a 
power simply collateral, but as to personalty, clearly he may 
exercise a power over that, at the age at which by law he may 
dispose of personalty to which he is absolutely entitled."' And 
so, if not prevented by statute, we must look to the common 
law to ascertain when an infant may make limitations of person- 
alty under powers. A statutory change of the time when an 
infant may dispose of chattels to which he is absolutely entitled 
would not per se aifect his common law capacity to execute a 

§ 50. Married women are incapable of making any disposition 
of chattels personal, unless it be under a power ; or unless they 
be such as are held to their separate use. 

§ 51, Slaves, as a general rule, can neither make nor receive 
limitations of personalty, since they are incapable of taking or 
holding property. But a valid trust may be created in their 
favor, which is to take effect after manumission. Thus, a man 
may by will direct his executor to send his slaves to a state or 
country where slavery does not exist, and then to pay to each 
one a certain sum of money, or to invest a certain sum for their 
benefit. So he may make a conveyance in trust for them after 
emancipation, and then emancipate them according to the law of 
the State, and the trust will be good. But in neither case would 
it be good if to take effect whilst they are still slaves, for then 
they have no capacity to take.^ 

§ 52. In Lillard v. Rucker,^ it was held that a deed of slaves 

^Sug. on Pow. 161. 2See Atwood's Heirs v. Beck Adm. 21 Ala. 590. 
^9 Yerger 84; see also Newsom et al. v. Thompson. Ex'r, &c. 2 
Iredeirs Law Rep. 277. 


to persons not in esse was not effectual to pass tlie property when 
they came in esse. This doctrine applies, of course, to all chat- 
tels personal ; and the ground of it is, that delivery is essential 
to the validity of a deed, and there cannot be a delivery to a 
person not in existence. 

§ 53. But this doctrine does not invalidate a conveyance to a 
person in esse in trust for persons yet unborn, or yet unbegotten j 
nor does it affect the validity of a future limitation for their 
benefit, when there is a prior taker in esse. Thus, if a chattel 
personal be given by deed to A, in trust for the children of B, 
who has none, the trust will wait for the children. So if there 
be a conveyance by deed of a chattel personal to A for life, re- 
mainder to the children of B, the remainder will wait for their 
coming if there be none in e^^e. ^ 

§ 54. The doctrine, indeed, does not seem to affect a deed 
delivered to a third person as an escrow to be delivered to a 
person not in esse; and such deed so delivered would seem to be 
effectual, if, subsequently in the lifetime of the maker and be- 
fore the request had been countermanded, it were delivered to 
the grantee. 

§ 55. A bequest to a person not in esse is valid. But there 
is a distinction between a gift in prcesenti and a gift in futuro. 
If the bequest be in prcesenti and the legatee is not in esse at 
the death of the testator, the gift is void ; but it is not so, if the 
intention is to make a future gift. No certain rule can be laid 
down that will apply to all such cases ; for the intention is to 
govern, and that must be ascertained in each case from its own 

§ 56. It is said that a remainder in realty to a corporation, 
not in esse, is not good even though such corporation should come 
into existence before the termination of the prior estate ; but it 

'See Williamson & Wife v. Mason Ex'r, June Term, Ala. 1853. 


cannot be held that future limitations of chattels personal would 
not be good under such a state of facts. 

§ 67. A maxim of the common law is, that a man cannot 
make a gift to himsslf ;- and the maxim is as applicable to per- 
sonal as it is to real property. The conveyance is simply nu- 
gatory. A man, however, may make a conveyance of chattels 
and reserve to himself a present interest, but that is nothing 
more than the creation of a future interest in the other party, 
and not the conveyance of an interest to himself. It is true 
that a party may acquire a new estate in real property by a 
conveyance to uses or in trust. The statute of uses has no ap- 
plication, as we have already said, to chattels personal ; but a 
person may convey chattels personal to another in trust far the 
donor, and the trust will be good. 

§ 58. Another maxim of the common law is, that a man can- 
not convey property in prcesenti to his wife ; but he may make 
such gift in trust for the separate use of his wife ; or he may 
make a conveyance to her after a limitation to a third person, 
and it will take effect, if he dies before the limitation falls into 

§ 59. Another maxim of the common law is, that a man can- 
not make a conveyance of real property to his '^hcirs,-\a) But 
chattels do not descend upon the death of their owner mtestate ; 
they pass to the administrator, as assets for the payment of 
debts, and then for distribution. Heirs, therefore, as heirs, have 
nothing to do with chattels personal ; yet the rule of the com- 
mon law, as it is applied to devises of real property, is appliec 
to gifts of chattels personal. The principle extends to gifts, tc 
"next of kin,'' "distributees," "relations," "legatees," and other 
gifts which by construction, are to " next of kin." The principle 
is, that when a person has a title by law, he shall claim by that 

(«) See Keyes' Rem. 29, for origin and reason of rule. 


title, for it is higher than a title derived from maiir But the 
principle cannot apply, if the gift be to persons by name, though 
they happen to be next of kin, nor to persons by a description 
which is not sufficiently comprehensive to include any person 
who by possibility might be next of kin at the donor's death {b). 
J^or does the principle apply when the gift is to "heirs" or 
'^next of kin/' if they are to take under the gift in a manner 
different from that in which they would take by law — as if they 
are to take '^ as tenants in common" when their title by law 
would be as joint-tenants. Nor does it apply if the interest 
which they take under the gift is different in quantity from the 
interest which they would have taken by law, had the gift to 
them been simply omitted. It must be remembered, however, 
that the only way by which the next of kin can be made to take 
a partial interest is by a valid disposition of the residue to some 
other person. And here we may add, that the gifts of which 
we have been treating are such as are to take effect after the 
donor's death. 

§ 60. There is a difference of judicial opinion in regard to a 
gift in trust to an unincorporated company. In the Trustees of 
the Philadelphia Baptist Association et als. v. Hart's Ex'rs, 
there was a bequest to the Association " for the education of 
youths of the Baptist denomination, who shall appear promising 
for the ministry, always giving a preference to the descendants 
of my father's family." The Association had existed for many 
years as a regularly organized body, but was still unincorporated 
at the death of the testator* The Court held that the Associa- 
tion could not take the trust as a society, nor could the bequest 
be taken by the individuals who composed the Association at the 
death of the testator ; that there were no persons to whom the 
legacy could be decreed, were it not a charity, and that it could 
not be sustained as a charity. * 

(6) SeePos^ l^Q. M Wheaton, I. 


The contrary opinion, however, seems now to be the better 
one, at least upon authority. ' 

§ 61. Gifts of chattels personal for charitable purposes are 
not restricted ; but every alienation of them made for the pur- 
pose of delaying, hindering, or defrauding creditors, is void as 
to them, by Statute of 13 Eliz., c. 5, (which has been, with but 
little variation, re-enacted or continued in force in the several 
States;) unless made upon valuable consideration and bona fide to 
a person not having at the time of such alienation any notice of 
such fraud. ^ 

§ 62. And so voluntary settlements of chattels personal when 
fraudulent are also void as to creditors. When such settlements 
are fraudulent, is a vexed question. The Courts are agreed 
that a man must be indebted at the time, or he must make the 
settlement in contemplation of becoming so, in order to render it 
fraudulent ; but they differ as to whether any indebtedness at 
that time will avoid the settlement as to existing creditors. It 
has been held that any amount of indebtedness at the time of 
the settlement is per se fraudulent ; and, on the other hand, it 
has been held that the question, whether it is fraudulent or not, 
is to be determined not from the mere fact of indebtment at the 
time alone, but from all the circumstances of the case. The 
latter seems to be the better doctrine, and therefore if a man 
make a settlement upon a wife or child, and he has still enough 
for the payment of his debts, the settlement will not be per se 

The Courts are also agreed that when a voluntary settlement 
has been set aside as to existing creditors, that the subsequent 
creditors are also let in ; but there is a difference of opinion up- 

^Carter et ux. v. Balfour's Adm'r, 19 Ala. 814; Judd, &0. v. Woodruff, 
a Root, 298; McCord v. Ocheltree, 8 Blackf. 15. 

^Williams on Per. Prop. (43.) 


onthe question, whether a, subsequent creJitor can irxipeacli a 
settlementj as IVaudulcnt, bj rcciaon of the prior mdebtedacss. 

§ 63. There is still another question connected with this ir;at- 
fcer which demands notice here; and that is, whether the pro- 
perty conveyed must be such as is liable to be taken in execu- 
fcion for debts'? The English Courts hold the aSrmative, and 
kence in England a voluntary settlement of stock, or of choses 
in action, or of any other property, not liable to execution, is 
valid both as to subsequent and existing creditors. The same 
doctrine is also held by Courts in this country; but other Courts 
h^re hold the contrary.* In this State, the doctrine ha^ been 
carried very far. In Patterson v. Campbell, the facts were, 
that Patterson contracted with one Hall to do work for him 
about the erection of a cotton press, and by the contract was^to 
receive a certain amount in cash, and for the balance Hall was 
to convey a lot to the infant daughter of Patterson. The con- 
tract and the deed, in accordance therewith, were made before 
the work was commenced. A bill was filed against Patterson 
a>nd his daughter by an execution creditor, to subject the lot to 
the payment of his debt. The Court held, that, under the sta- 
tiite giving to Courts of Equity the power to subject things in 
action to the payment of debts^ the lot was liable to the pay- 
ment of the execution creditor,^ 

§ 64. But these conveyances, whether voluntary or not, are 
good between the parties and their privies, and even when vol- 
untary, cannot be annulled by the grantor, unless the object of 
the settlor is his own benefit or convenience. Thus^ a maiden 
lady, not immediately contemplating marriage, but thinking 
such an event might happen, transfered stock to trustees in trust 
for herself until she should marry, and after her marriage, in 

«See I Story's Eq , | 353, ei seq.: Buford, &c, v. Bnfordj 1 Bibb, 305 
«9 AIa. 933. 



trust, for her separate use for her life, and after her death, upon 
trusts for the benefit of HBy husband she might marrj, and her 
child or children by any such husband or husbands. She after- 
wards being still unmarried, filed a bill, to have the settlement 
delivered up to her and cancelled, and to have the stock trans- 
ferred back to her by the trustees. The Master of the Rolls 
held that the settlement was binding ; and said : The doctrine 
itself has never been disputed, and has been the subject of re- 
peated decisions, from the cases of Villers v. Beaumont, 1 Ver. 
100, in the year 1682 ; and of Brookbank v. Brookbank, 1 Eq. 
Ca. Abr, 168, in 1691 ; down to the modern cases of Ellison v. 
Ellison, 6 Ves. 666, and Pulvertoft v. Pulvertoft, 18 Ves. 84 ; 
and he added : It must, indeed, have been coeval with the sta- 
tute of 27 Eliz., inasmuch as the second section of that act de- 
clares that voluntary conveyances shall be void only as against 
purchasers for valuable consideration. ^ 

§ 65. But where a father conveyed his estates to trustees for 
paying oIT annuities granted by his son, together with the ar- 
rears, and also the son's debts, if they thought proper to pay 
them, remainder to himself for life, remainder to his son in fee ; 
and the annuities were mentioned in a schedule, but the annui- 
tants were not parties to the deed ; and the father and son then 
executed other deeds var3nng the former trusts, the court held, 
upon a bill filed by an annuitant to enforce the former trust in 
his favor, that the settlement was revocable, and having been 
revoked, that the plaintiff could take nothing by his bill.^ 

§ QQ. In cases, however, in v/hich such conveyances are made 
in trust for the creditors of the grantor, the conveyances cease 
to be revocable, lYhen the creditors assent to them ; and gener- 
ally, at least, when they have notice of the trust, it is presumed 
that they assent, unless they dissent. 

'Bill V. Cureton, 2 My. & Keeiie, (503.) 

•"Walwyii v.CoutiSja Sim. 14; see also Garrard v. Ld Lauderdale, Id. L 


§ 67. The statute of 27 Eliz. c. 4, by which voluntary set- 
tlements of lands and other hereditaments are void against sub- 
sequent purchasers for a valuable consideration, though it ex- 
tends to chattels real, does not apply to chattels personal. A 
voluntary settlement of chattels personal cannot, therefore, be 
defeated by a subsequent sale of the property by the settlor. ' 

§ 68. There are several other matters to be considered in 
the creation of interests in chattels personal. 

§ 69. There must be certainty in the subject of the convey- 
ance ; certainty in the object of it ; certainty as to the event 
upon which the limitation is to take effect ; and certainty in the 
intent to give.^ 

§ 70. Thus, in regard to the subject, if a man make a con- 
veyance of his white horse, and he has four white horses, the con- 
veyance is void for the uncertainty ; unless it can be sho\Yn ali- 
unde^ as it may be, which one of the white horses was intended- 
But if the conveyance were of one of his white horses, instead 
of his white horse^ then the party to whom the conveyance is 
made may elect which one of the white horses he will take, and 
thus the uncertainty is avoided. So, if the conveyance be of a 
definite portion of a larger quantity, as ten bushels of corn, 
when the party conveying has five hundred ; or if it be of a de- 
finite number, and the party conveying has a larger number, as 
when he has a hundred cows and makes conveyance of twenty, 
the donee shall have his election, and the maxim is id certuni 
est quod reddi cerium potest. But this election must be made 
by the party in his lifetime, and cannot be by his executor or 

'Williams on Per. Prop. (216) Bill v. Curetoo. 2 My, & K. 503. 
2Kea V. Robeson, 5 IredelPs Eq. Rep. 373; Proctor v. Pool, 4 Dev. 
Law Rep. 370, Doe v. Porter et al. 3 Ark. 18, 
^4 Bac. Abr. (Bouvier) 525. 


§ 71. The question of uncertaintj in the subject of a convey- 
ance seems most frequently to have arisen in bequests, where 
there was a gift of chattels personal to one person, and at his 
death, of what shall remain.) or on Icft^ to another. 

Thus, in Bull v. Kingston, there was a bequest of personal 
property in trust for A, a married woman, for her separate use, 
with a power of disposing by will except to particular persons ; 
and then the testatrix added : " in case my said sister (A) dies 
without a will, I give all that may remain of my fortune at her 
decease to my godson, WilHam Ashby." The court held that 
A took an absolute interest in the property, and that the be- 
quest over was void for the uncertainty.^ 

So, where there was a bequest to M. E. of the legal interest 
on bonds, debentures, and funded property, together with house- 
hold furniture, &c., to be disposed of as she shall think proper, 
and in case F. E. should survive the said M. E. that he should 
have the interest of money and whatever docs belong to her, 
that she does not dispose of; it was held that the bequest over 
was void for the uncertainty.^ 

So, in Wynne v. Hawkins, the testator gave to his wife per- 
sonal estate, " not doubting but that she will dispose of what 
shall be left at her death to our two grand-children." The 
Lord Chancellor said : If the intention is clear, what was to be 
given, and to whom, I should think the words "not doubting" 
would be strong enough. But, where in point of context it is 
uncertain what property was to be given, and to whom, the 
words are not sufficient, because it is doubtful what is the confi- 
dence which the testator has reposed ; and when that does not 
appear, the scale leans to the presumption that he meant to give 
the whole to the first taker. Accordingly the bill which had 

»1 Mer. 314. 

^Philips 2. Eastwood, Lloyd & G. Temp. Sug. 270. Stated 4. Bar. 
k Har. Dig. 352. 


been filed by tlie surviving grand -rliild against tbe personal re- 
presentative of the v'ifc, who bud di-d intestate, was dismissed.' 

In PushnM;n v. Fillitcr-, tbe testator bequeatbed personalty 
" unto my said wife, Mary Pusbman, desiring her to provide for 
my daughter, Anne, out of tbe .-ame as long as she my said wife 
shall live, and at her decease to dispose of v)hat shall he left 
among my children in such manner as she shall judge most prop- 
er." The bill was filed by the children against the executor of 
Mary Pushman, claimiug that an absolute trust upon the death 
of their mother, was created in their favor. The Master of tbe 
Rolls said : Tbe only question, then, is, whether tbe person, in 
whose favor the request is made, and the property to which it 
applies, are certain ; if so, all these words now used by a person 
having a right to command, shall create a trust. * * * * 
Therefore it is merely a question of construction upon the words 
'' what shall he left ;" whether they mean only what shall be left 
after providing for bis daughter Anvx, I think Wynne v. Haw- 
kins as strong as this. It might have been equally contended 
in that case, that he meant all after she had expended what was 
necessary for her own income. In tliis it must be contended, 
that if a bill bad been filed, the property would have been im- 
pounded. I am clearly of opinion that I should go too far, if I 
did not hold, that he left it in the discretion of his wife to give 
to bis children any part she did not dispose of. I construe the 
words larger than tbe plaintiffs ; that it is an absolute gift to 
bis wdfe of any part of this property to any use she might think 
fit, clothed only with a trust for bis daughter Annej who, I 
admit, could have filed a bill: but no one else could. ^ 

In Sprange v. Barnard, a woman, by virtue of a power, be- 
queatbed 300/. South Sea annuities to her husband, and ^' at 
his death, the remaining part of what is left, that he does not 
want for his wants," to her brother and sisters. 

n Bro. Ch. Rep, 180. -Z Ves. 7. 


The Master of the Rolls said : It is contended for the persons 
to whom it is given in remainder, that he (the husband) shall 
have it only for his life, and that the words are strictly manda- 
tory on him to dispose of it in a certain way ; but it is only to 
dispose of what he has no occasion for, therefore the question is 
whether he may not call for the whole ; and it seems to me per- 
fectly clear, on all the authorities, that he may. I agree with 
the doctrine in Pierson v. Garnet,' following the cases of Har- 
land V. Trigg,- and Wynne v. Hawkins,^ that the property, 
and the person to whom it is given, must be certain, in order to 
raise a trust. Now, here the property is wasting, as it is only 
what shall remain at his death. The cases are so much in point, 
that they are scarcely worth mentioning ; they are Bland v. 
Bland, ^ LeMaitre v. Bannister,^ V/ynne v. Hawkins, w^here 
*■' not doubting " would have been sufficient to have raised the 
trust, had it not been for the uncertainty of the following words. 
Palmer v. Scribb^ is not wo?th mentioning. Then the present 
case is " so much as he sliali not want for his wants." It is 
contended tliat the court ought to impound the property; but it 
appears to me to be a trust which would be impossible to be ex- 
ecuted. I must therefore declare him to be absolutely entitled 
to the 300/., and decree it to be transferred to him.'^ 

In Wilson v. Major, the testator bequeathed to his wife all 
his effects whatsoever or wheresoever for her maintenance, upon 
full trust and confidence in her justice and equity, that at her 
decease she w^ould make a proper distribution of what effects 
might be left in money, goods, or otherwise, to his children, ac- 
counting what they had already received in money or effects as 
part of their shares ; and it was held that she was absolutely 
entitled to the whole of the personalty.'* 

^2 Bro. Ch. R. 38 ; Id. 225. ^1 Id. 142. =*! Id. l79. 

*2 Cox, 349. ^Stated 2 Bro. Ch. R. 40. 

*'2 Eq. Ca. Abr. 291. "-2 Bro. Ch. R. 585. HI Ves. 205. 


§ T2. Tn regard to the class of cases just stated, Mr. Jarinan 
says: Here, it may be observed, that, in numerous instances, a 
devise or bequest of what shall rem -in or he lift at the decease 
of the prior devisee or legatee, has been huM to be void for un- 
certainty. Some of these cases c.n-uainly had special circum- 
stances, and the indefiaitenoss seems not to have been invariably 
considered to be such as to invaUilate the gift. At all events, 
the expression is susceptible of explanation, where the property 
or part of it consists of household furniture, or other articles of 
a perishable nature, by considering these words as referring to 
the expected diminution of the property by the use and wear of 
the first taker. Such, it is clear, would be the construction, if 
the property (whatever its nature) were given to the first taker 
expressly for life ; indeed, there is not, it is believed, any case 
in which such expressions have been held to render the gift void. 
when the prior interest w^as expressly limited in such terras; 
and the case of Cooper v. Williams^ is an authority against 
such a construction. 

So, 'in the recent case of Gibbs v. Tait,^ where a testator 
bequeathed a residue to A for life, and after her decease or mar- 
riage, he gave what should he remaining of such residuary mo- 
neys to other persons, no objection seems to have been advanced 
to the validity of the gift on the ground of uncertainty.^ 

§ 73. But in all cases, in which the first taker takes the ab- 
solute ownership of the property, a gift over at his death of 
what shall then be left is a void gift."^ It is void in Equity as 
a trust fcr the reason given in all the cases, that the property 
to which the trust is to attach is too uncertain, or for another, 
and perhaps better, reason, that there is no property to which 
the trust can attach. It is void, at law, because a gift of the 
absolute property is a gift of the whole property, and therefore 

■^Pre. Ch. 71 pi. 64. 2Eq. Ca. Abr. 290; Kinnard v. Kinnard, 5VVatts, 110. 
^3Sim. 132. =^1 Jar-ou WlHs, (321.) *Riddick v. CohooU; 4Rand. 547. 


there is nothing upon which the gift over can operate; and that 
is the ground of repugiiancy, and is not only a better, but is the 
true ground of the doctrine. 

§ 74. When, howeyer, chattels personal are given to A gen- 
erally, amd what shall he Icfl or remain at his death is given to 
Bj there may be a question v/hetber the gift to A is not a gift 
for life only. It is a question of co.iistrucfcion as to the inten-~ 
tioB of the donor. The better opinion seems to be,, that the 
determination of it will, in the absense of other circumstances^- 
depend upon the nature of the property. Thus, if money be 
so given, the gift over seems to be void ; for a gift of chattel& 
generally is a gift of the absolute property ^ and though such a 
gift might be held to be but a gift for life, where there was a 
general gift over at the death of the first taker, yet a gift over 
of lahat shall he left seems not to be a qualification of the inter- 
est first given. But if the chattels consist wholly of articles 
which are worn out in using, as household furniture,, or in part 
of such articki, then the better opinion seems to be that the 
first taker takes but an interest for life in the whole, and that 
the person to whom the limitation over is made^ wi!l be entitled 

^ 75. In regard to the other proposition y that such a gift after 
a gift expressly for life,. or other limited period, is not void, there 
seems to be no objection ; except it bo in regard to articles qme 
ipso usu consumunturj and as to tbem, the books confiict, inas- 
much as many of them hold that a gift of such articles for & 
limited period is an absolute gift.. 

§ 76. The case of Duhamel v. Ardovin requires notice hereon 
In that case Marbeuf made his will in French ; in the beginning, 
of which he said, he thereby gave all his worldly goods and es- 
tate. . Afterward he gives particular legacies, and makes a pro- 
vision for his wife- Then says, " Whereas,- my daughter Mari» 



anne is very ill y if she dies, in that case T leave to my wife the 
revenue and dividends of what little estate I have : but if my 
daughter lives, my wife shall enjoy her dowry only. Item^ I 
give to my daughter iMarianne the residue and dividend." Then 
if she dies without children, he gives several pecuniary legacies, 
soncluding with, "I give to my brother, Lewis Marbeuf, ce qm 
ee trouvera.^^ 

The daughter survived her father, but died of the same ill- 
ness and without issue ; the husband filed a bill as her adminis- 
Jrator, claiming the whole property. 

The Lord Chancellor, after deciding that the widow was en- 
titled for life, said : The last clause concerning Lev.is meane 
what shall be left,, from the idiom of that language ; and I thint 
it a very sufficient residuary bequest, as strong as I leave all to 
my mother^ including the whole not particularly disposed of be- 
fore, and that falls in with the beginning as not intending to die 
intestate as to any part. But I do not rely barel}- on the words t 
it was a natural disposition and intent ; his daughter being then 
likely to die of a violent distemper, it was natural for him to 
make a larger provision for his wife in that event, and afterward 
to give it to his brother, ^ 

§ 77. Mr. Jarman adds to what has been previously quoted :. 
And if the gift of what shall he left is preceded by a power of 
disposition or appropriation reserved to the prior legatee in favor 
of particular objects,, the expression evidently points at that 
portion of the property v/hich shall be unappointed or unappro^ 
priated under the power. 

As in the ease of Surman v. Surman,^ where a testator be- 
queathed his personal estate to his v/ife for life or widowhoody 
with a power to apply the same to her own benefit, and the 
maintenance of A and B during minority ; and at her decease 

»1 Ves. sr. 162. 25 j^^jaJd. 12, 


or second marriage, he gave the same or so much as should then 
remain, to certain persons ; this was held to be a good bequest 
of the personal estate unapplied to the prescribed purposes. ' 

The case of Upwell v. Halsey may also be stated, especially 
as there the gift to the first taker was not expressly for life. 

The clause of the will upon which the case turned was this : 
I make my wife whole and sole executrix of all my personal es- 
tate ; and my will is, that such part of my personal estate as 
she shall leave of her subsistence, shall return to my sister." 
The interest of the personal estate was not sufficient to maintain 
the wife. The wife afterwards married and died, and the dis- 
pute was between the sister and the second husband. 

Sir Joseph Jekyll, Master of the Rolls, before whom the 
cause was heard, gave it in favor of the sister. He said, that 
such a sense, if possible, ought to be put upon a will, as is 
agreeable to the intention of the party, and consistent with the 
rules of law. And such a one he thought this will capable of; 
for he understood it thus : "I devise the use of my personal 
estate to my wife for her life, with a power " (the interest not 
being sufficient for her maintenance) " to dispose of as much of 
the principal as shall be necessary for her subsistence ;" and his 
sister to have the residue. He thought no stress was to be laid 
upon those words, "all my personal estate ;" for that is no more 
than what the law implies ; for when a person is made executor, 
the law vests ail the personal estate in him. But then it is true, 
that this gift which by construction of law is absolute, may be 
qualified by the declared intention of the testator. Here it is 
restrained to her for life ; but with a power, indeed, to dispose 
of so much of the principal as shall be necessary to her subsist- 
ence, over and above the interest. And accordingly an account 
was decreed to be taken. ^ 

M Jar. on Wills, (322.) ajoiMod. 442, 1 P. W, 65!, 


§ 78. Upon the whole, therefore, we arc satisfied that no gift 
over of "what shall be left," or "what shall remain," is void 
for uncertainty, since there are many cases to which such a prin- 
ciple would apply, that are held to be free from objection ; and 
since it is a matter which may be rendered certain by account, 
and therefore in contemplation of law is already certain. 

§ 79. But let us take two or three cases illustrative of the 
rule which requires certainty in the description of the subject 
of the gift, since it is clearly not necessary that the description 
should be accurate in every respect. 

In Barnes v. Simms, there was a gift of a slave named La- 
man, and it was held that a slave named Aaron would not pass 
without other circumstances of identity.^ But in Tudor v. 
Terrel et al.^ under a gift of a certain number of slaves, which 
were there named and two of them called Phillis, a slave named 
Philip was allowed to pass, there being but one slave named 
Phillis belonging to the donor. And it was held that such a 
case was one of latent ambiguity, and was, therefore, open to 
extrinsic testimony. ^ So, under a gift of a slave named Jack, 
now in the possession of A B, a slave in the possession of A B 
named Jim miglTt pass. 

§ 80. We come now to consider certainty in regard to the 
olvjects of a conveyance. This question is most frequently pre- 
sented by wills, though it maj^ well arise in deeds of trust, and 
in limitations over by deed not by way of trust. 

§ 81. When a conveyance is to B, and two persons of that 
name claim under it, then as the uncertainty is produced by 
matter dehors the instrument, it may be removed by matter de- 
hors; but if it cannot be thus removed, the uncertainty is fatal. 

§ 82. The question as to certainty may and docs most often 
'5 Iredell Eq. Kep. 392. 22 Dana Rr:p. 47. 


arise under a conveyance to persons, not by name, but by de- 
scription ; and when the uncertainty is in the description itself^ 
it cannot be obviated by extrinsic evidence^ and it necessarily, 
therefore, renders the conveyance void. 

§ 83. In Waite v. Templar, a testator who had long resided 
in India, gave one-fifth of a residue " to Thomas Parlby, Esq., 
junior, who resided at Stonehouse, near Plymouth, Devonshire, 
when I left England, or to his heirs, executors, administrators, 
or assigns, forever." Thomas Parlby was dead at the date of 
the will, and it was held that the bequest "to his heirs, execu- 
tors, administrators, or assigns," was void for the uncertainty.^ 

§ 84. In Lowndes v. Stone, the testator gave the residue of 
his effects to his "next of kin, or heir at law," and the court 
ordered distribution to be made according to the statute.^ The 
bequest was therefore held to be void ; for if it had been held 
to be a good bequest to the next of kin, they would have taken 
as joint-tenants.^ 

§ 85. In Gallego's Ex'rs v. The Attorney General, a gift to 
be distributed among needj^, poor, and respectable widows was 
held to be void for uncertainty as to the beneficiaries.* 

§ 86. A gift to "relations " seems to be indefinite, but it is 
well settled, that under such a gift those persons who would 
have heen entitled in case of intestacy, are entitled, and alone 
entitled, to take. The same rule is said to apply where the gift 
is' to "near relations," or to "poor relations," or "necessitous 
relations," or " poorest relations," or " most necessitous rela- 
tions ;" unless the legacy is given to establish a charity for poor 
relations, and then the fund is to be divided among the most in- 
digent.^ There is, however, says Sugden, a considerable weight 

'2 Sim 524. 24 Ves. 649. 

^Vice-Clmncellor in Waite v. Templar. ^3 Leigh. 450. 

*2 VViHiams on Ex'ors, 730; M'Neilledge v. Galbraith, et al. Ex'ors. 
8 Serg & R. 43; Same v, Barclay, 11 Id. 103. 


of authority against holding " poor," '' necessitous," or the like, 
as merely nugatory, though he thinks the doctrine as stated the 
better one.* "Nearest relations," is construed to mean near- 
est in blood, ^ 

§ 87. When a testator bequeathed 50/. to each of his " rela- 
tions by blood or marriage.," Lord Rosslyn held, that the word 
** relations " must be confined to relations entitled under the sta- 
tute of distributions, and to persons who had married relatives 
entitled under that act. 

§ 88. Where the gift is to relations of a specified name, a 
change of name by marriage will not exclude one who v/ouid 
otherwise be entitled ; and this was so ruled bv Lord Hardwicke 
in Pyot y. Pyot. ^ 

§ 89. In Gower v. Mainwaring, there was a gift " among big 
friends and relations," and Lord Hardwicke said friends is sy- 
nonymous to relations; otherwise it is absurd,* 

\ 90., When a power is given to appoint to relations, and the 
donee has a right of selection, he may select without as well as 
within the degree of next of kin. Thus, if the power be to ap- 
point among "such of my relations" as the donee shall think 
fit, be has a right of selection. * 

§ 91. But if the donee has not the right of selection, he can 
appoint among the next of kin alone. Thus, in Pope v. Whit- 
combe, the donee was directed to appoint among the testator's 
relations in such manner as she should think fit, and the court 
held an appointment to testator's relations, who were not next 
of kin, to be void, ® 

»Sug. oil Pow. 521. ^Smith v. Campbell, Coop. 277. 

*2 Ves. sr. (86.) ai Ves. sr. 338, 

sCole v. Wade, 16 Ves. 27; see Grant v. Lyman, 4 Rus. 297; Sug 
on Fow. 524. *3 Mer. (506) m. 


§ 92. If there is a gift over to the relations in default of ap- 
pointment, the court will, of course, construe '' relations " in 
the same manner as if there had been no power. ' 

§ 93. In regard to family : In Doe v. Joinville, a testator, 
after giving divers legacies, declared : And as to all the rest, 
residue, and remainder of my goods, chattels, estate and effects, 
whatsoever and wheresoever, both real and personal, I give, de- 
vise and bequeath the same unto my beloved wife Sarah Hayter, 
for and during the term of her natural life; and from and after 
her death, then I give, devise, and bequeath the said rest and 
residue in manner following, viz : one half part thereof unto ray 
wife's family, subject to the payment of a legacy ; " and the 
other remaining half part thereof unto my brother and sister's 
family, equally to bo divided between them, share and share 
alike." The testator, at the time of making his will and of his 
death, had one brother, Jos. Hayter, who then had six children, 
two sons and four daughters, all of whom, together with their 
father, were still living. The testator had also one sister, who, 
at the time of making his will, had six children, and she and her 
children were still alive. The testator had survived five broth- 
ers, who had died without issue, but he had a sister who died 
before the making of his will, who left twelve children, all of 
whom were livino; at the testator's death. The court, after 
much consideration, held the limitation over to be void for the 
uncertainty, who was meant by the word " family. "^ 

In Robinson v. Waddelow, a testator directed 10,000/. to be 
invested, and the interest to be paid half-yearly to a married 
daughter for life for her own private use, without being subject 
to the direction or control of any husband, or other person what- 
ever ; and he also directed other 10,000/. to be invested in the 
same manner in every respect, for aiwther married daughter. 

»Siig. on Pow. 524. =3 East. (172) 


He then declared : AH the rest and residue of my effects to be 
equally divided between my said daughters, and their husbands 
and families. The bill was filed by the executors and trustees 
of the will, against Mr. and Mrs. Waddelow, and their five 
children, and Mr. and Mrs. Featherstone, and their three child- 
ren, praying that the rights and interests of all parties in the 
testator's residuary estate might be ascertained and declared. 
The Vice-Chancellor said : If the words of the residuary be- 
quest comprehend all the children of the two daughters, then 
they must, of necessity, comprehend all their husbands. 

The w^ord "family " is an uncertain term: it may extend to 
grand-children as well as children. The most reasonable con- 
struction is, to reject the words " husbands and families." He 
mentioned Doe v. Joinville, and added : I think that the best 
construction in this case is, to hold that the two daughters take 
the residue equally and absolutely as tenants in common. ' 

In Barnes v. Patch, the testator gave the residue of his es- 
tate to be equally divided between " brother Lancelot's and sister 
Esther's families." The Master of the Rolls said : The only 
construction is, that by the word " family," children are meant; 
and if that is the construction, does it not follow^ that the divis- 
ion must be per capita?^ 

In re Parkinson, the testator directed his executors to lend 
out the residue of his estate, and pay the interest to his widow 
during life or widowhood, and the principal at her death or 
widowhood to his five sisters and their respective families, if 
any. Some of the sisters had children born during the testa- 
tor's lifetime, and some had children born after his death, but 
during the lifetime of the tenant for life. One of the sisters, 
and the representatives of another, petitioned for payment of 
one-fifth to each. Lord Cranworth, after stating the case, said, 
that three constructions had been contended for. On behalf of 

'8 Sim. 134, =8 Ves. 604. 


the petitioners representing the sisters, it was argued that the 
gift must be read as if it was a gift to them in fifths. Mr. EI- 
derton contended that each of the sisters took an estate for life, 
with remainder to her cliildren born during the Ufetime of the ten- 
ant for life ; and Mr. Shebbeare, on behalf of the children born 
at the death of the testator., contended that it was a gift to the 
widow for life^ with the remainder to the five sisters, as to each 
share, and to such children as should be living at the death of 
the testator as joint tenants. Mr. Phillips, on behalf of the 
sisters alone, contended that the word * -family" must be re- 
jected ; he relied particularly on the case of Robinson v. Wad- 
delow, 8 Sim. 134, before the Vice-Chancellor of England, Ie 
which that word was rejected. I cannot say that that case is 
quite satisfactory to my mind, but I think it went on the spe- 
cialty of the language. I see that I was counsel in it, but I 
cannot recollect anything about it. I do not quite follow the 
reasoning, and I cannot agree, if it is meant to say that the 
word " family" is to be always rejected, and I do not think I 
.can act upon it. Mr. Phillips insisted that there were no cases, 
except Beales v. Crisford, 13 Sim. 592 ; and Wood v. Wood, 
3 Hare, Q5 ; in which the court had given effect to the word 
^'family." But there is a case before Lord Hardwicke, and 
the case of Barnes v. Patch, 8 Ves. 604, before Sir William 
Grant, in which it is said that the word meant children. So in 
Wood V. Wood, 3 Hare, Bb ; and the only question is, whether 
-there is any difference where the gift is to the parent and family. 
In Woods V. Woods, 1 My. & C. 401, Lord Cottenham held 
that the gift for the benefit of a woman and her family gave the 
children an interest* So in Beales v. Crisford, in which, how-; 
ever, the will was so strangely worded^ that it can hardly be 
said to be an authority. I do not think I can reject these words 
as unintelligible. In common parlance, in speaking of a woman-, 
and her family, her children are meant. We find that none of 
the sisters had been married above six or seven years, and there- 



fore could have no f<iini]y except cliildren. I think it is obvi- 
ous, that what he meant was his sisters and their children. 
That consideration decides net only against Mr. Phillips, but 
also against Mr, Elderton, This construction would have been 
a very good will, but not the will that was mads. He might 
have given to his sisters for life, w^ith remainder to their child- 
ren, but that he has not done. Oa this point, Froggart v. War- 
dell, 14 Jur. 1101, was cited, but I cannot rely upon that case, 
nor would the learned Judge who decided it say it was any au- 
thority, as it depended upon such nice specialties, that it cannot 
govern any other cause. The result of my consideration, there- 
fore, is, that the estate must be divided into fifths ; and as to 
each fifth, each sister ar»d such children as were living at the 
death of the testator, take that one-fifth as joint tenants. ' 

In M'Leroth v. Bacon, Lord Alvanley — proceeding upon the 
special words of the will — considered a husband as one of the 
family of the wife^ though he said that he desired to be under- 
stood that such could not be the construction, unless required 
by the context." 

In Grant v. Lyman, it is said that "family ^' will be constru- 
ed to mean " next of kin," and that " family " and " relations " 
have the same meaning. ^ 

In Williams v. Williams, the testator by codicil declared : it 
is my wish that you should enjoy everything in my power to 
give, using your judgment as to where to dispose of it amongst 
your children when you can no longer enjoy it yourself. But I 
should be unhappy if I thought it possible that any one not of 
your family should be the better for what I feel confident you 
will so well direct the disposal of. The Vice-Chancellor said : 
Now Lady Williams, (the legatee) at the death of the testator, 
had four children; one of them, Lady Chichester, was married, 
and of course, adult, and she was younger than her sister. 

'2 Eng. Law & Eq. Rep. 104. '5 Ves. 159. '4 Rus. 297. 



What were the ages of the sons does not appear. In tins state 
of things, I think that the word " famih^," as used in the codi- 
cil, is not confined to children onl}^, but wouhl include descend- 
ants in any degree. The word "family" is one of doubtful 
import, and may, according to the context, mean '^ children," 
or " heirs," or " next of kin." But here I think the words " of 
your family," are equivalent to ''of your blood," i. e,, your 
posterity, your descendants. * 

In Tolson et als, v, Tolson et als. the testator gave the residue 
of his estate to his seven sons, and added : " I request my seven 
sons above-named to take care of their brother, John Tolson, 
and his family." The bill was filed by John Tolson, and Eleanor 
his wife, and their adult and infant children, praying for the 
execution of the trust. The court said : The term " family," 
as used in this will, does not designate, we think, any individual 
persons with sufficient accuracy. So far, then, as regards those 
who were in the contemplation of the testator, when he used 
this language, the devise must fail for uncertainty, but this will 
not affect the devise to Jobn.- 

§ 94, The same rules, in regard to powers, which are applied 
to ''relations," are also applied to "family."^ 

§ 95. In regard to issue : The general rule is that it includes 
all descendants, but it may be confined to children by the con- 
text. Thus, in Swift v. Swift, where by marriage articles a 
reversionary interest in a fund v/as agreed to be settled on the 
husband for life, remainder to the wife for life, and after the 
death of the survivor, on the issue of the marriage, living at the 
death of the survivor, in equal shares, if more than one, and if 
but one, then the whole was to go to such only child, it was held 
that the context showed that '^ issue ^'^ meant children alone. * 

^T Eu,si. Law & Eq. 47. 

210 Gili & John. 159; see Wright v. Atkyiis, 1 Tnr. & Rus. 143. 
^See Grant v. Lyman, 4 Rus. 297; see Siig-. on Pow, 518 et seq. 
"8 Sim. 168. 


And so '' issue " may in one part of an instrument mean de- 
scendants generally, whilst in another part it nia}^ be confined 
to children. Thus, in Dalzell v. Welch, a testator in designa- 
ting the objects of a power of appointment given to his daugh- 
ter, used the w^ords ''issue" and ''child or children," synony- 
mously ; and in a subsequent part of his will he gave his son a 
power of appointment over a different part of his property, and 
in pointing dut the objects of it, used the word "issue," sim- 
ply : the son bad both children and grand-children living at his 
death, and it was held that the exercise of the power in favor of 
the former only was void, notwithstanding the term " issue " as 
used in the first part of the will meant children only. ' 

In Pope V. Pope, under a bequest for all and every the " issue " 
of E. living at her decease and that of her husband ; but if any of 
the issue should die in the lifetime of the survivor of E. and her 
husband, leaving issue, the " issue of such issue," so dying, 
should take the share his parent would have been entitled to ; 
it was held that the word " issue " meant children, and that, if 
the testator had intended to express descendants, the words 
" issue of such issue" would not have had any meaning.^ 

§ 96. In regard to next of kin : In Elmsley v. Young, A as- 
signs a fund to trustees^ upon trust to pay the interest to B for 
his life, and after 'i's decease to pay, transfer, and assign the 
game among B's chi! "ren, and if no child of B, then as A should 
appoint, and in def ■. uit of appointment, to such person or per- 
sons as should at the decease of A be A's next of kin. A died 
in the lifetime of B wkbout having made any appointment, and 
B died without issue. B was the only surviving brother of A, 
but there were children of a deceased brother. It was held by 
the Lords Commissionors, over-ruling Philips v. Garth, ^ Hinck- 
ley v. Maclarens,'* and the decision in this case at the Rolls 

«2 Siin. (320.) -9 Eng. L. & E. Rep. 193. 

•3 Cro. Ch. Rep. 6J. ^l My & Keeue, 27. 


that the words " next of kin," when used simpliciter, are to he 
taken to mean " nearest of km," and that consequently B's re- 
presentatives were entitled to the whole fund. ^ They also held 
that B was not excluded by the gift to him from the benefit of 
the limitation to A's next of kin. But as to the first point, 
qucBre ? 

§ 97. In regard to Children : This word is construed in its 
natural sense, and is not so extended as to include grand-child- 
ren, unless the intent is apparent, or the instrument would oth- 
erwise be inoperative. 2 The onus rests upon those who desire 
to extend the construction. ^ So of nephews, nieces, kc 

It may be added here, that in Illingworth v. Cooke,* it was 
held that a bequest by a testatrix in favor of all her grand- 

children, except one, viz : ■ , was a bequest to all the 

grand-children. And that in Lane v. Green, ^ under a gift by 
will to four sons of A B, that three sons and a daughter, the 
only children of A B, were entitled to take. 

§ 98. Legal Representatives : The leading case is Bridge v. 
Abbott.^ In that case the testatrix bequeathed the residue of 
her estate to certain persons named, share and share alike ; and 
she directed " that in case of the death of any of them before her, 
then the share or shares of him, her, or them, so dying before 
her, should go to, be had and received by his or her legal repre- 
sentatives," The executor of one so pre-deceasing claimed his 
share under this bequest, and so did his residuary legatee ; and 
Lord Alvanley held that it went to neither, but to the next of 
kin. He said : I am of opinion, that the true construction is, 
that by legal representativis, she meant such persons as could 

>2 My & Keene, 780. 

2See note 2 Sim. 326, citing Marsh v. Hague, 1 Edw. 174. 

nd. citing Shelley v. Bryer, Jac. 207. ^5 Eng. L. & Eq. "R. 66. 

6ia, 226. "3 Bro. Ch. Kep. 224. 


claim John Webb's proper tv in tbeir own right ; which would 
be his next of kin. 

In Jennings v. Gallimore, money was settled in trust to be 
paid according to the appointment of Ambrose Gallimore, and 
in default thereof, to his legal representatives, according to the 
course of administration; Ambrose Gallimore, in pursuance of 
the power, by will, appointed to his legal representatives, ac- 
cording to the course of administration ; and he gave the rest, 
residue and remainder, of all his real and personal estate and 
effects to his nephew, WiUiam Gallimore, eon of his elder broth- 
er, and to his heirs and assigns forever. He appointed his said 
nephew residuary legatee, and appointed his said nephew and 
John Home, executors. The fund was claimed by the nephew, 
William Gallimore, and the other next of kin, a sister and 
nieces. The Master of the Rolls said : Upon the will I am of 
opinion, first, that he did not intend William Gallimore to have 
this fund ; and then the only persons who can take it must be 
those entitled to his personal estate. Therefore declare, that it 
belongs to the next of kin.^ 

Palin V. Hills, the Lord Chancellor said : I cannot, for the 
first time, overrule such an autliority as that of Bridge v. Abbot, 
without any one case, and with scarcely one dictum^ the other 
way — an authority worthy of all acceptation on all accounts, 
for the learning, the peculiar care and assiduity w^hich distin- 
guished the excellent, most pains-taking, and candid Judge wdio 
decided it — an authority never yet noticed but to be approved, 
when it has been brought under the deliberate consideration of 
the court.- 

§ 98, a. Personal Representatives — Legal Personal Represen- 
tatives. Mr. Proper says : The legal construction of the words 
" personal representatives " or "legal personal representatives," 

'3 Ves. 146. H My. & Keene, 486 


is the i'xecuto7's or administrators of the person described. Con- 
sequeritlj, if a legacy were given to A, and his personal or legal 
personal representatives, the absolute interest must veet in A. 
But if no bequest be made to A, and the limitation be to the 
personal or legal personal representatives of A, unexplained by 
anything in the will, A's executors or administrators would be 
entitled to it, not as representing A, or as part of his estate, or 
liable to his debts, but in their own rights as personce designates 
by the law. This legal construction and appointment only take 
place he adds, \^hen testators have not manifested any intention 
in their wills to the contrary ; for if it appear from the disposi- 
tions in the instrument, whether it be a deed or will, that those 
words were used in reference to other persons than executors or 
administrators, that intention will prevail.' The better rule, 
however, is, that the executors or administrators in such case 
take for the next of kin, and not beneficially, unless the donor 
*' indicate such un intention either in express words too plain to 
leave any doubt, or raise any question," or unless the intention 
that they shall take beneficially appear from the whole context 
of tlie will taken together. So great, indeed, is the improbabil- 
ity that a donor intended a benefit to a person whom accident 
should ascertain, that a court would not be justified in constru- 
ing a gift to personal representatives, or legal personal represen- 
tatives, to be a gift beneficially to executors or administrators, 
unless the construction were utterly unavoidable.^ 

In Tipping v. Howard, there was a settlement by deed of 
3000/. upon trust, in an event to pay one-third part to a cousin 
Hannah Cotton, or her legal representatives ; one-third part to 
other cousins, Ann Crole and Mary Linister, or their legal re- 
presentatives, equally ; and one- third part equally amongst the 
children of an uncle, James Lomax, or their legal representa- 
tives, &c. The suit was instituted for the purpose of having a 

'i Roper on Leg. 108. -Palii. v. Hills, 2 !vly. & Keene, 470. 


construction put on the words '^ legal representatives." It was 
contended that next of kin, and not executors or administratorSj 
was meant, because the latter words were frequently used in the 
deed, but with reference only to the trustees, which was sufficient, 
it was said, to show that the author of the settlement had a distinc- 
tion in his mind. It was also said that the words "equally between 
them," showed an intention to refer to next of kin ; and further, 
that the statute of distributions had given that meaning to 
"legal representatives" under it. Several authorities were 
cited. Knight Bruce, V. C, said : In the first place I will ob- 
serve, that I consider the present case is not governed by any 
of the cases cited, and I therefore give no opinion as to any one 
of them. There are three possible interpretations of these 
words, either of which leads to the same result. They mean 
" executors or administrators," and be, therefore, merely what 
are called words of limitation ; or if words of substitution, they 
apply to those persons living at the date of the settlement ; tr 
they are void for uncertainty ; and as each leads to the same 
result, it is not necessary to say to which I incline. 1 may add, 
that the words "legal representatives" — I do not say " legal 
personal representatives" — is a phrase so loose, and susceptible 
of so many arguable constructions of a plausible kind, that if a 
person using those words desires to have them acted upon by 
a court of justice, he is bound to supply a context to explain 
them. ' 

§ 99. Executors and Administrators : The intention that they 
shall take beneficially must clearly appear ; as in Sanders v. 
Franks,^ where the gift was " to the executors or administra- 
tors of the wife, to and for his, her, or their own use and bene- 
fit, and it was held that the wife's administrator took beneficial- 
ly by force of the latter words. 

^6 Enu. L. & Eq. Rep. 99. 

-2 Mad. 1 17, Citeu by counsel in Collier v. Squire, 3 Riis. 473^ 


An ijlustration of the general rule is furnished by the ease of 
Collier v. Squire. In that case, by a marriage settlement^ 
stock, the property of the husband^ was settled in trust for the 
separate use of the wife during her life, and after her death, for 
the husband, if he survived her; but if he died in her life-time^ 
then for such persons as he should by deed or will appoint : and 
in default of appointnaent, for his executors and administrators*. 
The husband died in the wife's life-time, having appointed an 
executrix, but without exercising his power, and it was held^ 
that the executrix was not entitled beneficially, but as the rep- 
resentative of the husband. ' So in Palin V. Hiils, a testator 
gave a legacy of 2000/. to A, and in case A should die in his 
life-time, he directed that the legacy should go and be paid to- 
iler executors or administrators. A died in the life- time of the 
testator, having made a will, by which she appointed R. P. her 
residuary legatee ; and it was held by the Lord Chancellor, upoi> 
appeal from the Molls, that A- s next of kin wxtc entitled benefi- 
cially, and not the residuary legatee or the executors of A^. 

In Hames v. Hames, John Hames, in consideration that all 
of his intended wife's personal property except her interest ii> 
long annuities should be his, and in order to make a further pro- 
vision for her and the issue of the marriage, assigned lease- 
holds to trustees, on trust, to permit him to receive the rents 
and profits durhig his life ;. and immediately after his death t(h 
pay an annuity of 250/. to his widow; and after the payment of 
the said annuity upon trust, to pay the residue of the rents, if 
any, " unto the executors or administrators of the said John 
Hames, for and during the natural life of the said Grace Hay- 
ter (the intended wife) ; and from and after the decease of the 
survivor of the husband and wife, on trust, with all convenient 
speed, to sell the leaseholds, and receive the purchase money^ 
and thereout pay the expenses of the trust, and to each child of 

'3 Rus. 467, 21 My. & Keeiie, 470, 


the marriage so much money, as together with the interest of 
such child in the long annuities, would amount to 1500/., to be 
payable at twenty years of age, with a provision for mainte- 
nance in the meantime : and in case any sucli child should hap- 
pen to die under t!je age of twenty-one yars, as to the share of 
such child so dying, and also as to the residue of such trust mo- 
neys, to arise from such sale or sales as aforesaid, upon trust for 
the executors, administrators, or assigns of the said John Hames, 
to and for his and t-ioir own absolute use and benefit ; and in 
case there should be no such child or children of the body of the 
said John Hames, on the body of the said Grace Hayter law- 
fully to be begotten, or there being such, all of them should die 
under the age of twenty-one years, then as to the whole of such 
trust moneys, upon trust for the executors, administrators, and 
assigns of the said John Hames, absolutely forever ; and to and 
for no other trust, intent, or purpose whatever, 

John Hames then covenanted to renew the leases, to insure 
the premises against loss by fire ; and further, that in case he 
should die in the lifetime of his intended wife, his executors or 
administrators should, during the life of the wife, pay to her the 
annuity of 250/.; avsd then followed a proviso, that so long as the 
executors or admhiisti-ators of Hames should pay the annuity, 
the trustees of the settlement should stand possessed of the 
leaseholds, " upoa trust to permit and sufier the executors or ad- 
ministrators of him, the said John lir'-nes, to receive and take 
the rents, issues and profiis thcreoi, to and for their own use 

and benefit, any tiling thereinbefore contained to the contrary 
thereof in any wise notv/ithstanding.'' 

There were two children of the marriage, George and the de- 
fendant William. John liamts made bis will, appointing his 
wife and G. G. Hayter, his executors, and died. George, the 
son, then died, leaving his mother and liis brother his next of kin. 
G. G. Hayter, trustee and one of the executors of John Hames, 
died, and afterwards Grace, the widow, died, having bequeathed 


all her property to the defendant. The question was, whether 
the surplus of the produce of the leaseholds, after providing for 
the poi tions of the children of the marriage, formed part of the 
residuary estate of John Hames, the settlor, or belonged to his 
executors beneficially. 

The Master of the Rolls said : It is extremely improbable, 
that the settlor, executing a marriage settlement, and professing 
that his object was to make a prevision for his intended wife, 
and the issue of the marringo should silently intend to make a 
provision for the person who should chance to be his adrainis- 
trator-—perhaps a small creditor — perhaps a person to whom 
administration might be granted durante minori celate^ or upon 
some other contingency : and unless the words are incapable of 
any other construction, and the court is absolutely compelled^ 
by fores of them, to impute that highly improbable intention, 
that conclusion ought not to be adopted. After discussing th# 
m^atter at some length, and admitting that the words vYcio 
*' strong and difficult to manage," he decided that the execaLor* 
took as representatives merely, and not beneficially. " 

§ 100. Descendants. — In Butler v. Stratton, the testatrix 
gave jier residuary real and personal estates to trustees, in trust 
to sell the former, and divide the proceeds, with her personal 
property, "equally between the descendants of Thomas Fair- 
bank, deceased."" Vv^hen the testatrix died, Thomas Fairbank 
had three sons and eleven grandchildren ; and Lord Thurlow 
determined that all Fairbank's descendants, as well grandchil- 
dren as children, were entitled to the fund per capita.^ 

§ 101. Hdrs. — In the absence of any thing controlling the 
meaning of the word in a direct gift to '"'heirs," the construc- 
tion is that "next of kin" is meant. ^ But that construction 

'2 Keen, 646. ^3 Bro. C. Rep. 367, staled 1 Roper on Leg. 115. 

3 See Buskins' Appeal, 3 Burr, 304. 


may be ccntrolled by the intention of the party making the con- 
veyance. Tims, in Loveday v. Hopkins,' the gift was : I give 
to my sij^ter Loveday's heirs 6000/. I give to my sister Bra- 
dy's children 1000/. equally. Mrs. Loveday had two daugh- 
ters oiily, and both were living when the will was made. One 
of them died before the testatrix, leaving three children, and the 
other survived her and claimed the whole 6000/. The question 
was, whether the children of the deceased daughter should par- 
ticipate with the surviving daughter, which depended upon the 
construction of the word ^Mielrs." And Sir Thomas Clarke 
was of op'.nion that the testatrix had explained that word by the 
terra "children" in the bequest which immediately followed. 
So that the word '*" heirs" was to have the same and only mean- 
ing as "children," a construction that entitled the surviving 
daup-hter to the whole 6000/. ^ But this seems to be a hard con- 

la Eddings et at. v. Long et al., the testator gave his widow 
all his Ia;i*is, and several slaves, lor her life-time, and gave the 
remaindtr iu the lands and slaves to certain other persons, who 
were his children, and then declared : I wish that such of mjy 
property that I have not willed away, may be sold and divided 
among my /egal heirs. The Court said : The testator, after 
making what he considered a proper division of his lands, slaves 
and other effects between those entitled to be remembered, was 
aware there yet remained a large surplus undisposed of. This 
he indicates shall go in the precise manner as if no will was made, 
when he uses the expression that he wishes it to be sold and di- 
vided among his legal heirs. When the term " heir" is used in 
connection w^ith the personal estate only, there is no conflict in 
the cases, that it is to receive the construction of next of kin. 

MAiTibl.273. ^Stated 1 Roper on Leg. 805 see Simms v. 

Carror, 1 Dev. & Battle, 393; Rend d ds. v. Fite, 8 Hr.m. 3i8. 


Lowndes v. Stone, 4 Ves. 649 ; Holloway v. Holioway, 5 ib. 
399; Vaux v. Henderson, IJ. & W. 388. 

This term, used solely in this connection, seems to be pre- 
cisely equivalent to legal representatives, and the decisions are 
numerous where this is held to mean next of kin, and that these 
take under the will as under the statute of distributions. — 
Bridge v. Abbot, 3 Bro. C. C. 64 ; Long v. Blackall, 3 Ves. 
486; Cotton v. Cotton, 2 Beavan, 67. These authorities are 
conclusive to show the court did not err in letting in the widow 
under this bequest, and the statute of distributions determines 
her share to be one-fifth, where there are more children than 
four. * 

§ 102. Heirs of the Body : The natural construction seems 
to be, children ; and if no children, then grand-children, &c. 

§ 103. Heirs Male of the Body : Sons ; if no sons, then grand- 
sons, &c. It is not necessary that the descent should have been 
through males, for the son of a daughter would be entitled, 
though in claiming by descent, it is otherwise ^ 

§ 104. Heirs Female of the Body : Daughters ; if no daugh- 
ters, then grand-daughters, &c. (See heirs male of the body.) 

§ 104, a. Heir: This word has the same signification as 'heirs;' 
for if there be several heirs, or co-heiresses, they make but one heir 
in law, and therefore if A give to the " heir" of B, the gift is 
the same as if it had been to the "heirs" of B. 

§ 105. Legatees : Ordinarily there seems to be no difficulty 
in the "construction of the word, [n Smith et als. v. Martin's 
Ex'rs, its meaning was controlled by the words of the will. In 
that case, the residuary clause w^as : The remainder of my pro- 
perty, not before enumerated, and what I may hereafter come 
into possession of, I give to be equally divided among my lega- 

MO Ala. 203. 22 jar. on Wills, 7-10. 


iees^ agreeably to the laws of the State in which I reside." He 
had previously given legacies to his wife, to his children, and to 
several grand-children. Parsons, J., in delivering the opinion 
of the Court, said : If the word '' legatees" is to be taken in its 
literal sense, it applies to and includes his wife, children, and 
grand-children who are mentioned in the will, to all of whom, by 
a previous part of the will, he had given legacies. But we think 
it appears by the will itself, that the testator intended the resi- 
due of his estate for such of his legatees as it would have gone 
to in case he had died intestate — his wife and children only. 
The residue consisted of personal estate. It was bequeathed 
"to be equally divided among ray legatees, agreeably to the 
laws of the State in which I reside." The word legatees, which 
otherwise would have included all, was restricted, we think, to 
such of his legatees as might have claimed the residue under 
the statute of distributions, in the event of bis dying intestate, 
by the words that followed — " agreeably to the laws of the 
State," &c. Those words related either to the division or to 
the legatees. If to the division, they had neither meaning nor 
effect ; for the division was to be equal, according to the express 
language of the testator. But if they related to the legatees, 
then they have both meaning and effect, as they are restrictive 
of the number of his legatees who are to take the residue. We 
do not feel at liberty to reject words which have a clear mean- 
ing and effect, and which are consistent with what he probably 
intended. We could only reject them upon the clear impres- 
sion that they were used without meaning and without effect. ' 

§ 106. Servants : When a bequest is made to servants, the 
first question is, whether they are servants de contractu^ or serv- 
ants de jure. 

§ 107. If they are servants de contractu^ then those persons 
'18 Ala. 819. 


alone are entitled to take, who, at the death of tlie testatorj were 
bound by agreement to serve during each and every part of tha 
time for which they contracted to serve. This is so laid down 
by Mr. Roper,' but it seems to be rather too stringent a con- 
struction ; for if a person had taken a boy, and the boy without 
any contract had remained in some humble capacity rendering 
service until the testator's death, it seems right upon construc- 
tion to say that the boy should come in for a portion, and yet 
the case seems not strictly to fall within the rule as laid down. 

§ 108. In regard to servants de jure: In Fable v. Brown^ 
Ex'r, it was held that the status of our slaves is to be ascer- 
tained by reference to what was anciently held to be the condi- 
tion of alien enemies and pagans, and therefore that a legacy 
given to a slave is not void, but that it cannot be recovered from 
the executor by the slave or his master, though it may escheat 
to the State in the hands of the executor. And the learned 
Judge who delivered the opinion, added : I do not say what the 
effect would be if the executor should think proper, of his own 
accord, to pay over the legacy to the slaves, or their master. ^ 
In Walker's Ex'ors v. Bostick,^ however, it was said that the 
condition of slaves in this countrj/ is analogous to that of the 
slaves of the ancient Greeks and Romans, except in a few cases, 
wherein the manners of modern times have been softened by the 
benign principles of Christianity ; and therefore that a legacy 
to a slave failing from incapacity to take sinks into the residu- 
um of the testator's estate. This is the better doctrine, and 
was asserted by the court in Brandon v. The Huntsville Bank,* 
in Trotter v. Blocker & Wife,* and in Alston v. Coleman et al.^ 
This being the state of the law, the question now under consid- 
eration cannot arise as to this class of servants. 

*1 Roper on Leg. 121. 22 Hill's Ch. Pxep. 378. =4 Dessaus. 207, 

*1 Stewart, 320. ^g Porter, 269. ^7 Ala. 795. 


Ordinaril/, where slavery exists, no persons except slaves are 
known as servants, though a case may well arise in which hired 
serv^ants might claim under a bequest to servants, when the tes- 
tator was also the owner of slaves, (a) 

§ 109. In regard to " survivox-s '- we content ourselves with 
a reference to the forty-seventh chapter of Mr. Jarman's Trea- 
tise on Wills. 

§ 110. An illustration of anoth r khid of uncertainty is found 
in the case of a gift to one of the sons of A. B. when A. B. has 
several sons. 

§ 111. Uncertaint3% it is said, is sometimes produced by the 
mention of several objects alternatively, as in the case of a gift 
to A or B. But this is sometimes avoided by construing "• or" 
to be "and," or by construing the gift to the second person to 
be a substitute in some event, as in Girdlestone v. Doe, where 
the gift was in remainder to B, or his heirs. ^ 

§ 112. Where in the case of alternate gifts, the gift is void 
as to one alternative, it may be good as to the other. Thus in 
Hill's Ex'ors V. Bowman ei al.^ a testator, after devisincc landa 
to his executors to sell, bequeathed as follows : I give the mo- 
ney arising from " the sales of the lands and tenements aforesaid, 
and the collection of ni}^ outstanding debts, as well as all mo- 
neys which I may have on hand at the time of my death, in 
trust to my said executors, that they shall so dispose of the 
same for the purpose of aiding any of the members of my fami- 
ly^ or any other person or persons, who may be in distress, and 
w^hom they may think I would myself have assisted in such 

(a) Upon the subject generally, see 1 Roper on Leg. Ch. 2, l Sii::. 
on Pow. (568) et seq. 1 BdC. Abr. (Boin'icr's ej ) IA7 et seq. 2 Wins 
on Ex'ors, (729) et. seq. 

'2 Sim. 226: 1 Jar. on Wills. 324 and note (w); Fonsaith v. Clark, 
i Foster's (N. H.) Rep. 409. 


cases, confiding the disposition of tiie said trust fund entirely 
to their discretion." Carr J. in his opinion said: That part of 
the clause in the will before us, which empowers the trustees to 
give a part of the fund " to any other person or persons who 
may he in distress," is clearly void for uncertainty; hut why 
should it vitiate the foregoing part, for the benefit of the 
members of the testator's family 1 It is answered, because the 
word "or" couples the succeeding with the foregoing part of the 
sentence, and makes the word 'Mistress " relate back to " mem- 
bers of my family." Suppose this construction were agreed to 

(3oes any one suppose that a trust raised by a testator for the 

benefit of any members of his family, who might be in distress, 
would be void 1 The books teem with such cases ; and the only 
question about them is, whether the words in distress are not 
wholly inoperative, and the distribution of the fund to be made 
without them. The cases are both ways. But all the books 
agree that such a trust is valid ; and surely, if so, the connecting 
it with a trust void for uncertainty cannot vitiate it. Tucker, 
P. also delivered an opinion, in which he came to the same con- 
clusion. ^ 

§ 113. And so, where the conjunction or connects parties who 
are the same, the gift of course is not thereby rendered uncer- 
tain ; as in Philips v. Evans, where the gift was " unto and 
amongst the personal representatives or next of kin," no ques- 
tion was made as to the uncertainty of the gift. ^ 

§ 114. The general proposition is, that it is not necessary 
that all the particulars of the description of the object of a con- 
veyance should be accurate. Thus, under a gift to John and 
Benedict, sons of John Sweet, a son named James (there being 
no John) was held to be entitled. ^ So in Lane v. Green, the 

'7 Leigh, 650, ~6 Eng. L. &Eq.Rep. 37. =^1 Jar, on Wills, (33J.) 


testator bequeathed as follows : I give and bequeath 100/. apiece 
to the four sons of Ann Hazell, wife of Mr. Hazell, of Chorley 
near Wallingford, bj her former husband. Ann Hazell had 
three sons and one daughter bj her former husband, who were 
living at the date of the will, and at the death of the testator ; 
and they were the only issue of that marriage. Knight Bruce, 
V. C. said : I think it is impossible to say that the testator did 
not intend to give 400/^, and as there is no dispute as to the 
parties he intended to benefit, I think, on this particular will, 
the three sons and daughter of Mrs. Hazell take the 400/. equal- 
ly among them. ^ 

So in Adams v. Jones, the bequest was to Clare Hannah Ad- 
ams, wife of Thomas Adams. The wife's name was Hannah, 
only ; but Thomas Adams had a daughter named Clare Hannah 
Adams, who, at the date of the will, was two years old. It was 
held that the gift was not void for uncertainty, but that the 
wife was entitled.^ 

§ 115. The next certainty to which we are to look is in re- 
gard to the event. This certainty must be not only as to the 
event intended, but it must also be in the determinable quality 
of the event. It is not the uncertainty that an event will ever 
happen that renders void a limitation which is made to depend 
upon it,; for id cerium est quod reddi certum potest: but it is 
that uncertainty which prevents a court from determining wheth- 
er the event has or has not happened. 

Thus, in Hutchin v. Mannington,, the testator, after noticing 
that his fortune was vested upon securities in the East Indies, 
gave several legacies. Most of them were particular to several 
of his brothers and sisters, with clauses annexed to each, direct- 
ing that ^' if the legatee should die before he or she might have 

*5 Eng. L. & Eq. Rep. 235; see also Trustees, &c. v. Peaslee, 15 N. 
H. Rep. (New Series) 317. =9 Eng. L. & Eq 269 



received the legacy, it should go to the children of the legatee 
equally, and in default of issue, among the other brothers and 
sisters." Then the testator, after stating how much the leg^i- 
cies would amount to, gave the residue (calculating the amount)- 
to his father absolutely, " but in case of his death before he might 
have received it," he gave it to his brothers and sisters and their 
children. The testator died about the year 1781, and his father 
in 1784, without having received any part of the residue ; and 
the question was, whether the brothers and sisters were entitled 
to it under the limitation over, or the father took an absolute 
vested interest in the fund at the death of the testator, so as to ■ 
entitle his personal representatives to claim it, although the fa- 
ther died before the receipt of any portion of it ; upon the ground 
that the bequest over, if the father died before he might have 
received the residue, was an event so uncertain, and so imprac- 
ticable to ascertain, as to be insufficient to divest the bequest' 
which had vested in the father? And Lord Thurlow was of 
opinion, that the father took an absolute vested interest in the 
property at the death of the testator, and consequently that the 
brothers and sisters had no title because of the uncertainty when 
the gift over was to take effect. * 

§ 116. It remains to be observed that the foregoing principles 
which relate to uncertainty in bequests are equally applicable 
to limitations by deed. 

6 117. The next question in regard to certainty is concerning 
the intent to convey ; and here there are many cases to be found 
in the books as to the creation of trusts by words of recom- 
mendation or other precatory words,- 

§ 118' Judge Story says that such words ought not to be con- 
strued in an imperative sense, unless that sense is irresistibly 

M Ves. 366; stated 1 Rop. Leg. 405. 


forced upon us by the context. He does not, however, lay that 
down as the rule which is deducible from the authorities, but as 
the reasonable rule ; and adds : Accordingly, in more modern 
times, a strong disposition has been indicated not to extend this 
doctrine of recommendatory trusts ; but, as far as the authori- 
ties will allow, to give to the w^ords of wills their natural and 
ordinary sense, unless it is clear that they are designed to be 
used in a peculiar sense. ' Rogers, J. however, in deliverino: 
the opinion in Coates's Appeal, says : In my opinion — and I 
announce it with all deference — the reverse is the proper rule, 
unless it appears from the context that such was not the inten- 
tion of the testator.^ 

§ 119. But let us look into some of the older and some of the 
later cases. We have seen incidentally that in Wynne v. Haw- 
kins,^ where a testator gave personalty to his wife, " not doubt- 
ing but that she will dispose of what shall be left at her death 
to our two grand-children," the Lord Chancellor thought the 
words were strong enough to create a trust, if there were not 
uncertainty as to the property. 

In Pushman v. Filliter, the testator bequeathed personal es- 
tate " unto my said wife, Mary Pushman, desiring her to pro- 
vide for my daughter Anne out of the same as long as she my 
said wife shall live, and at her decease to dispose of what shall 
be left among my children in such manner as she shall judge 
most proper." The bill was filed by the children against Filli- 
ter, executor of Mary Pushman, claiming that an absolute trust, 
upon the death of their mother, was created in their favor. The 
Master of the Rolls said . The words are clearly sufficient to 
raise a trust ; for we are now got beyond any possibility of doubt 
as to the rule of the court, that all words of recommendation, 
or desire, by a person having power to command, shall operate 

^2 Story's Eq. g 1069. ^2 Barr, 129. ^l Bro. Ch. Rep. 180. 


as a trust. The only question then is, whether the person in 
whose favor the request is made, and the property to which it 
applies, are certain ; if so, all these words used hy a person 
having a right to command, shall create a trust. The Lord 
Chancellor, in Malim v. Keighley, seems to think the Lords Com- 
missioners, in Cunliffe v. Cunliffe, did not intend to break in 
upon the rule. I cannot hut think still, that it is over-ruled by 
Pierson v. Garnett ; but, however, his lordship agreed with me, 
and it is now clearly settled upon Wynne v. Hawkins, Pierson 
V. Garnet, and the other cases, that any words of recommenda- 
tion by a person having a right to command, do create a trust, 
if the person and the property are defined. ^ 

In Meredith v. Heneage, the testator, after giving his real 
and personal estates to his wife, anxiously and warmly entreat- 
ed her to settle such part of the real estate at her death as she 
might think proper in trust for certain persons ; and added, that 
he had given her the whole .of his property unfettered and un- 
limited, in full confidence and with the firmest persuasion that 
in her future disposition and distribution of it, she would give 
it to such of his father's heirs as she might think best deserved 
li€r preference. It was held that no trust was created. The 
Lord Chief Baron said : It is not necessary to travel through 
the cases which have been furnished by the great industry, and 
urged by the great ability of the learned counsel on both sides. 
Lord Alvanley, when Master of the Rolls, in Malim v. Keigh- 
ley, ^ has extracted and stated the result of all the cases before 
that time ; and the subsequent cases have, it seems to me, made 
no alteration. He states the result in the following manner : 
Wherever any person gives property, and points out the object, 
the property, and the way it shall go, that does create a trust, 
unless he show, clearly, that his desire expressed is to be con- 
trolled by the party, and that he shall have an option to defeat it. 

»3 Ves. 7. 22 Ves 333, 529. 


I will not stay to inquire whether the language of that very 
learned and excellent Judge is very a<!curate and critically cor- 
rect, as applied to the cases ; but I believe they are the very 
words his honor used. I think,- however^ that the result, as 
stated by hira, is sufficiently correct for the present purpose ; 
and I shall consider the passages in the will accordingly ; and I 
confess that I feel myself bound by the doctrine delivered in it 
as generally consistent with the doctrines that have prevailed. 
But I hops to be forgiven if I entertain a strong doubt whether, 
in many, or perhaps in most of the cases, the construction was 
not adverse to the real intention of the testator. It seems to 
me Very singular that a p-erson, who really meant to impose the 
obligation established by the cases, should use a course so cir- 
cuitous, and a language so inappropriate and also obscure to 
express what might have been conveyed in the clearest and most 
usual terms — terms the most familiar to the testator himself, 
and to the professional, or any o^her, person who might prepare 
his will. 

In considering these cases, it has always occurred to me, that 
if I had myself made such a will as has generally been consid- 
ered imperative, I should never have intended it to be impera- 
tive ; but on the contrary, a mere intimation of my wish that 
the person to whom- 1 had given my property should, if he pleas- 
ed, prefer those whom I proposed to him, and who, next to him, 
were, at the time, the principal objects of my regard. I am 
happy to reflect that, in this opinion, I have the concurrence of 
a noble Judge, than whom there never has been, nor, I believe, 
ever can be a person more active in investigating the principles 
of the law in all its bearings, or more extensively learned on 
every legal subject. For in Wright v. Atkyns,' the Lord 
Chancellor (Eldon) says, " this sort of trust is generally a sur- 
prise on the intention ; but it is too late to correct that." * * 

'1 V.& B. 315. 


I have said so much as a justification, or rather as the founda- 
tion of the opinion which I entertain, that, though I feel myself 
bound by the decisions and cannot object to follow them, I do 
not consider it to be my duty to extend the rule of construction 
which has been adopted in them, and to add to the number of' 
those where the court appears to me rather to have made, than 
to have given eifect to the wills of testators. 

But without following the learned Baron through his argu- 
ment, we ma}^ quote an additional paragraph and, leave the case. 

It has been held, said he, and must, I think, be admitted, 
that if an intention appear in any part of the will to give to the 
devisee a right or power to spend the property, words of equal 
force with those would not be imperative ; the court, in its acute- 
ness to extract the meaning, conceives it to be inconsistent with 
the intention to create an imperative trust, that the party should 
have the right or power to dispose of the property at his pleas- 
ure, and, by using that privilege to any extent, leave nothings 
or more or less, to remain the subject of a trust. In this case, 
tlie words " unfettered and unlimited," which are used by the 
testator to show his opinion of the extent to which he had devis- 
ed, are certainly as strong to manifest an intention to convey 
the absolute dominion to the party, as if words had been used 
more directly authorizing her to spend it, or to deal with it as 
she pleased. ' 

In Sale v. Moore, a testator having given an annuity to one 
of his next of kin, and expressed a reason for giving nothing to 
the others, gave the residue of his property to his wife, recom.- 
mending to her and not doubting that she would consider his 
near relations, as he would have done if he had survived her : 
it was held that no trust was created. The Vice-Chancellor 
said: The first case that construed words of recommendation 
into a command, made a will for the testator ; for every one 

'1 Sim. 543. 


•knows the distinction between them. The current of decisions 
iias, of late years, been against converting the legatee into a trus- 
tee. ' But there was uncertainty in the quantity in that case 
which would have rendered an express trust void, for how could 
it be ascertained how he would have considered his relations. 

In Williams v. Williams, the Vice-Chancellor said : I doubt 
if there can exist any formula for bringing to a direct test .the 
question, whether words of "request," or ''hope," or "recom- 
mendation," are, or are not, to be construed as obligatory. It 
may be very safe in general to say, that where there is uncer- 
tainty as to the subject matter, or as to the objects in whose 
favor the request, or hope, or recommendation is expressed, 
those precatory words cannot have been intended to be absolute- 
ly binding. But the converse of the proposition is by no means 
equally true. The subject matter of the bequest and the ob- 
ject of the testator's bounty may be perfectly ascertained, and 
yet the context may show that words of hope or recommenda- 
tion w^ere not intended with the absolute discretion of the lega- 
tee^ Accordingly, in that case, where a testator gave all his 
personal property to his wife absolutely, and afterwards by a 
codicil, in the form of a letter addressed to her, declared : "I 
hope my will is so worded that everything that is not in strict 
settlement, you will find at your command. It is my wish that 
you should enjoy everything in my power to give, using your 
judgment as to where to dispose of it amongst your children^ 
when you can no longer enjoy it yourself. But I should be un- 
happy if I thought it possible that any one not of your family 
should be the better for w^hat I feel confident you will so well 
direct the disposal of." It was held that the widow took abso- 
lutely, and that there was no trust created. 

In Briggs v. Penny, the testatrix gave various legacies, and 

M Sim. 534. 

25 Eng. L. & Eq. Rep. 50. See Knott v. Cottee, 2 Philips. 1.92 


then gare S. P., whom she appointed sole executrix, 3000/., and 
a like sum of 3000/. in addition, for the trouble she would have 
in acting as executrix. She made other bequests, and then 
gave all the residue of her personalty to S. P., her executors, 
administrators and assigns, "well knowing that she will make 
a good use, and dispose of it in a manner in accordance with 
my views and wishes." It was held that there was an intent 
to create a trust as to the residuary gift, and therefore that S. 
P. could not take beneficially. The Lord Chancellor said : I 
conceive the rule of construction to be, that words accompany- 
ing a gift or bequest, expressive of confidence, or belief, or de- 
sire, or hope that a particular application will be made of such 
bequest, will be deemed to import a trust, upon these conditions, 
— first, that they are so used as to exclude all option or discre- 
tion in the party who is to act, as to his acting according to 
them or not; secondly, the subject must be certain ; and thirdly, 
the objects expressed must not be too vague or indefinite to be 
enforced. * * * * It is most important to observe, that 
vagueness in the object will unquestionably furnish reasons for 
liolding that no t. ust was intended ; yet this may be counter- 
vailed by other considerations, which show that a trust was in- 
tended, while at the same time such trust is not sufiiciently cer- 
tain and definite to be valid and efiectual. And it is not neces- 
sary — to exclude the legatee from a beneficial interest — that 
there should be a valid or effectual trust ; it is only necessary 
that it should clearly appear that a trust was intended. * 

§ 119a. The question as to certainty in the intent to give, arises 
also in cases of direct conveyances. Thus, in Young v. Carson, 
a testator declared by will, "I wish her to get Stanford in her 
third of the propert}^, if she chooseSj'* and it was held that it 
was not a specific legacy of the slave to his wife, but gave her a 

'8 Eng, L. & Eq. 22l. Another case upon the subject is Lucas v 
Loclihart et uls. lO Smedes & Mar. 466^ 


right to take him as a part of her third, charged at his valuation. ' 
In Ham v. Ham, a testator declared : I lend my daughter C. 
ray negroes, &c, during her life-time, or widowhood,^ and then I 
give them to her lawful heirs, for them and their heirs forever," 
and the Court held that the absolute interest in the slaves passed 
to the daughter. ^ 

In Benton v. Pope et als.^ William Pope, by deed, conveyed 
two slaves to his grand-children Salina, Mary, and Sally, daugh- 
ters of his son, W. W. Pope, to have and to hold forever; " the 
same to remain in the possession of Wm. W. Pope during his 
life, but not to be subject to his creditors, or liable for the pay- 
ment of his debts, in any way whatever ; and the said Wm. W, 
Pope is not to dispose of said negroes in any way or manner, 
either for his life, or any number of years." The Court said ' 
We have no hesitation in saying, that the w^hole and exclusive 
legal title to the negroes is vested by the deed in the plaintiffs, 
the grand-children of the donor ; and if the father has any inte- 
rest whatever, under the deed, it is a mere equitable usufruct^ 
subordinate to their legal title, not liable for his debts, and not 
available for any purpose in a court of law.^ 

§ 120. Another matter for consideration, in the creation of 
interests in chattels personal, is repugnancy. And there are 
several ways in which the question of repugnancy may present 

§ 121. It may present itself in the gift of the same thing by 
deed, or by vrill, to different persons. Thus, a chattel, in the 
first part of a deed or will, or even the first part of a clause, 
may be given to A, and in a subsequent part, the same chattel 
may be given to B. The old rule in such case was, that the 
first gift in a deed, and the last in a will, should take effect, and 
the other should be void.'* Thus, in Ulrich v. Litchfield, Lord 

M Dev. & Bat. 360. M Dev. & Bat. Eq. 598. 

^'5 Hump. 392. *2 Black. Com. (381.) 

mW of the creation, &.C., OF PARTIAL 

Hardwicke said : la the case of a simple legacy, if a man makes 
a will and gives a horse to A in the first part, and in the latter 
end of it, gives the same horse to B, it is a revocation of the 
.former legacy, and therefore Swinburne is mistaken in point of 
law. * 

In Sherratt v. Bentley, Brougham, Lord Chancellor, said : 
The rule has' often been cited, though very seldom made the 
ground of judicial determination, which requires us to give effect 
•to the last of two repugnant clauses in a will, though in a deed 
the first shall prevail. It is, indeed, as old as the time of Lord 
Coke, who states it in the first Institute, Co. Litt. 112 b; and 
it is curious to observe how he deduces it from the text. Lit- 
tleton, s. 168, simply says, " thnt if a man at divers times 
makes divers testaments and divers devises, &c., the last devise 
and will shall stand.'' His learned and subtle commentator 
educes from &c. this further meaning : ''Hereby, &c., is to be 
understood, also, that in one will where there be divers devises 
of one thing, the last devise taketh place, cum duo inter se pug- 
nantia reperiuntur in testarnento, ultimum ratum est.^^ But 
subsequent authority has, though by no means uniformly, adop- 
ted this principle. Some have held that both of the repugnant 
gifts are void ; and Mr. Butler,(a) in his Note, (Co. Litt. 112 
6, N. 1,) says, the better opinion is, that each devisee takes a 
moiety. I think, however, that the weight of authority is the 
other way ; and I feel bound to say, that the law is otherwise, 
and that Lord Coke's doctrine is the sound one ; and I do so in 
deference to the weight of authority, and not to the reason of 
the rule. For, besides the inconvenience of so severing the 
parts of one instrument as to set the latter against the former, 
instead of construing the whole together, (whinh would lead 
either to giving effect to both or to neither,) the refinement seems 

M Atk. 375. 

(a) The Note is Hargrave's. 



sufficiently puerile which introduces this rule of construction in 
the case of wills, merely because of the maxim, voluntas est am- 
bulatoria usque ad mortem; whereas ample effect would be given 
to the principle, if the whole will were considered as one act, in- 
stead of being separated into parts, an earlier and a later. Be- 
sides, there is manifest inconsistency in this doctrine ; for if the 
last expression of all is to prevail, wherever the will is executed 
by signing and publication, necessarily the last act of all, the 
latest expression of intention is the execution, and this refers to 
the earlier as well as to the later clauses, and recalls them into 
existence, if they had been destroyed by those later clauses. 

Such appears to be the reasonable view of the subject, and it 
would lead either to the opinion of those who have held that both 
clauses are destroyed, or to that which considers both devises to 
take equally, on the sounder principle of giving effect as far as 
possible to the whole instrument. The weight of authority, 
however, is against this opinion. Ulrich v. Litchfield, 2 Atk. 
372, is a case reported in a very slovenly way ; but it appears 
that Lord Hardwicke, so far as his opinion can be gathered from 
it, inclined to the rule laid down by Lord Coke, and dissented 
from the opinion of Piow^den, and from the case of Paramour v. 
Yardley, Plowd. 539. But, in Ridout v. Pain, 3 Atk. 486, 
which was decided five years afterwards, Lord Hardwicke puts 
the case of a devise to A and his heirs, of a farm in Dale, and 
in a subsequent part of the will, a devise of the same to B and 
his heirs, and says that, " though the old books held this to be 
a revocation, yet latterly it has been construed either a joint 
tenancy, or a tenancy in common, according to the limitation.'' 
Were it not for the opinion expressed by Lord Hardwicke upon 
the import of the cases, I should have said that these decisions 
do not materially depart from or conflict wdth Lord Coke's rule; 
for he evidently contemplates devises irreconcilably repugnant, 
and which in no way of reading them can stand together ; and 
where the authorities held the two devisees to take jointly or in 


commorij there was no irreconcilability,- repugnancy, or neces- 
sary revocation of the one by the other. I incline to think that 
the Touchstone takes the same view of the matter,- p. 451, as 
the learned editor, Mr. Preston, certainly does, in his edition of 
that valuable pubHcation. But I speak with much distrust of 
my own view of the subject, when I find that the point struck 
Lord Hardwicke in a different light. 

In Wykham v. Wykham, 18 Ves. 395, Lord Eldon consid- 
ered Lord Hardwicke as having decided Coryton v. Helyar, 
(which had then not been published by Mr. Cox,) on what his lord- 
ship calls the doctrine prevailing in all times as to wills, that a 
subsequent limitation inconsistent with a former one, cuts down 
the former by a necessary implication. But, in Coryton v. Hel- 
yar, 2 Cox, 340, Lord Hardwicke supplied the words, in the 
gift of a term of ninety-nine years, " if he should so long live;" 
so that it should seem the case was one of construction, and not 
of revocation. I nevertheless must regard this expression of 
Lord Eldon as lending the sanction of his authority to the doc- 
trine he refers to in Wykham v. VVykhamv 

Lord Alvanley had occasion more than once to consider this 
subject. In Sims v. Doughty, 5 Ves. 243,- he says, that where 
two parts of a will are perfectly irreconcilable,- so that they 
cannot stand together by rejecting words in either part as in- 
serted by plain mistake, he knows of no rule but by taking the 
subsequent words as an indication of a subsequent intention, 
and he adds, " the Court is in a dilemma, and cannot act at all 
unless they do that.'' Again, in the last case, which this learned 
and laborious Judge decided, Constantine v. Constantine, 6 Ves. 
100, he refers to the opinion just cited, and says that he adheres 
to it ; admitting, however, that where the same thing has been 
given to two persons in different parts of a will, doubts have 
been entertained whether they should not both take, as joint 

But in Doe dem, Leicester v. Briggs, 2 Taunt. 103, the doc-» 


trine was carried farther than I am aware of its having been 
carried in any other case. The question there arose upon the 
construction of repugnant words in the same clause ; and it was 
whether a devise to A in trust to pay unto, or to permit and 
suffer B, to receive the rents and profits was a trust, or a use 
executed in B-; and Chief Justice Mansfield delivered the judg- 
ment of the court after time taken to consider. The court — 
consisting of three most eminent common lawyers, besides the 
Chief Justice, viz: Fleath, Lawrence, and Chambre, Justices — 
held " the use executed in B, and expressly upon the ground of 
the general rule, that, if there be repugnancy, the first words 
in a deed, and the last in a will shall prevail." The Chief 
Justice added, that '* for want of a better reason, the court was 
forced to give the beneficial with the legal estate," and he pre- 
faced his judgment by observing that " the case might be argued 
and considered forever without advancing it at all in law, reason 
or precedent." But these observations mos-t probably referred 
to the peculiarity which marked the case of the repugnant words 
being parts of the self-same gift. Had the irreconcileable op- 
position been between different clauses separated by a considera- 
ble interval, there cannot be a doubt that the court would have 
applied the rule without any hesitation. It must then be ad- 
mitted, that the great weight of authority, both of Lord Coke 
and of the modern decisions, is in favor of regarding a subse- 
quent gift in a will as revoking a prior one to which it is repug- 
nant, and no;t rendering it at all void for uncertainty. How far 
that repugnancy could be got rid of by presuming an intention 
to give each legatee an equal moiety, where the very same thing 
is given first to one and then to another, there being no expres- 
sions excluding such intention, might be a different question. 
The repugnancy which existed in those other cases, may be said 
not to arise here. If in one part of a will an estate is given to 
A, and afterwards the testator gives the same estate to B, add- 
ing words of exclusion, as "not to A," the repugnance would 


be complete, and the rule would apply. But if the same thing 
be given first to A and then to B, unless it be some indivisible 
chattel, as in the case \Yhich Lord Hardwicke puts in Ulrick v. 
Litchfield, the two legatees may take together without any vio- 
lence to the construction. It seems, therefore, by no means in- 
consistent with the rule as laid down by Lord Coke, and recog- 
nized by the authorities, that a subsaquent gift, entirely and 
irreconcilably repugnant to a former gift of the same thing, shall 
abrogate and revoke it, if it be also held that where the same 
thing is given to two different persons in different parts of the 
same instrument, each may take a moiety; though, had the 
second gift been in a subsequent will, it would, I apprehend, 
work a revocation. ^ 

§ 122. Upon this case, Mr. Jarman remarks : It will be per- 
ceived that Lord Brougham considered that the two devisees 
take in moieties; i. e., tenants in common. It is submitted, 
bow ver,' that to hold the devisees to be joint-tenants, is a pre- 
ferable construction, as less violence is thereby done to the tes- 
tator's language than by making them tenants in common, as 
the creation of a tenancy in common requires positive intention ; 
and this seems to have been the notion of Lord Hardwicke, who, 
in Ulrich v. Litchfield, treats it as clear that the devisees, if 
they take concurrently, are, joint tenants.* 

§ 123. No one, it is presumed, would question the position 
that the devisees or legatees, in such case, take as joint ten- 
ants,(a) unless a different intention appear ; and the contrary 
opinion does not seem t© have been held by the Lord Chancellor 
in the case just cited. He was not addressing himself to the 
distinction between the two kinds of tenancy. The point wasj 

'2 My. & Keene, 149. ^1 Jar on Wills, (418.) 

(a) If a man in one part of his will devised his lands to A in fee, 
and in another pan of his will devised the same to B in fee, they are 
joint-tenants, per Dyer and Brown, J. 8 Vin. Abr. 281. 


shall one take, or shall both take? He said, " each may take 
a moiety." Does not a joint tenant take a moiety? — "an un- 
divided moiety of the whole?"' It is true, that a tenant in 
common also takes a moiety—" the whole of an undivided moie- 
ty." Hence it appears that the remark of the Lord Chancellor 
is strictly in accordance with principle and authority. Besides^ 
the manner of expressing the general rule is not a novel one ; 
for Copley, Sergt. in arguing Edwards v. Symons, said, "the 
courts have of late altered the rule of construction, and if a 
thing be given in one part of a will to one, and in another part 
to another, instead of holding that the last words shall be pur- 
sued and the first rejected, the court have said, the devisees shall 
take in moieties. ^^^ And so also said Hargrave, in his noto to 
Co. Litt. 112 b. 

§ 124. It is observable, also, Mr. Jarman adds, that both 
Lord Hardwicke and Lord Brougham considered that the doc- 
trine in question did not apply to a single indivisible chattel ; 
but such an exclusion is attended with difficulty,, for though, 
certainly, it may seem rather absurd that a testator should give 
a^ horse or a watch to several persons concurrently, yet it is im- 
possible to say that there may not be such an intention ; and 
where is the line to be drawn ? Is it to depend upon the greater 
or less convenience attending a joint or concurrent enjoyment 
of the subject of the gift?^ 

§ 125 o- The general doctrine, then, laid down by Lord 
Brougham, is, that where there are two gifts, in the same in- 
strument,- of the same property, to different persons, they shall 
take it equally, unless there appears an intention to revoke the 
former gift, which intention will not appear from the mere fact that 
a subsequent gift of the same property has been made by the 
same instrument, to a different person. And that when such an 

'2 Black. Com. (182 ) =6 Taunt. (218.) ^1 Jar. on Wills, 418. 


intention appears, as bj the words " not .to .the first donee," or 
other words of like import, then there is a case of repugnancy, 
and the reputed doctrine of Lord Coke applies., viz : that the 
first .gift in a deed, and the last in a will, shall take effect. 

§ 126.. Now, in regard to a deed, there can be no do-ubt of 
the general rule, that if the habendum be repugnant to the pre- 
mises, that the premises shall prevail ; and it is said that the 
hahendmn shall never introduce one who is a stranger to the 
-premises^ unless it be as a remainder-man. * But a deed maj/ 
be so informal as not to have its regular parts, and in such case 
the question might be material, what are the premises ? In 
Sumner v. Williams, the premises are defined to be everything 
which precedes the habendum.^ But there may be a. good deed 
without a habendum^ and there may be gifts of the same thing 
to different persons in the premises as defined. The pole star 
construction, both of deeds and wills., is the intention.. The 
court which is called upon to construe either, will look to the 
whole instrument, and, it is said, will transpose words, ^ senten- 
ces, or parts,* in order to effectuate that intention which is de- 
ducible from the whole instrument. In Losh v. Townley, how- 
ever. Lord Brougham, said upon this point : A language in con- 
struing instruments has long been used, partly for the conve- 
nience of its conciseness, which, however^ has a tendency to 
mislead, and we speak familiarly of reading ^' and," "or," — of 
rejecting words, as "" for life," or " no longer," — of inverting 
the order of words, and of inserting words, till we almost seem 
to be altering the instruments we are called upon to interpret ; 
and sometimes we are apt to use the device which these expres- 
sions denote, rather because there exists such a phrase, than 
because we are entitled to use the thing. In truth, all these 

'Bac Abr. Tit. Grants, (1) (Bouvier's ed.) 529. ^8 Mass, R. 174 

='2 Black. Com. (379); 1 Touchstone, (Prest. ed.) (88) I 10. 
^Doe V. Philips, 3 Ark. Rep. 57; Carter vi Carter, 1 Ves. sr. (168.) 


forms of expression mean but one tiling, though framed with 
variety of diction. It is, that the meaning of the maker of the 
instrument is inaccurately expressed, either from being obscure- 
ly, or elliptically, or contradictorily enunciated ; and that having, 
upon a view of the whole matter, ascertained his real, or full, 
or prevailing sense — real, where it is given ambiguously ; full, 
where elhptically; and prevailing, where contradictorily — we 
give to the whole such effect as the result of that inquiry autho- 
rizes, for accomplishing his purpose. ^ But returning from this 
criticism, we may lay down the rule, that where there is a gift 
of the same chattel to different persons in the premises of a 
deed, or in different parts of the deed, one part not being a ha- 
bendum^ the construction will be that it was intended they should 
take jointly, unless a different intention appear, 

§ 127. The doctrine in regard to wills, as laid down by Lord 
Brougham, seems to be correct, with the exception of the indi- 
visible chattel;^ and as to that, Mr. Jarman seems to be right. 
There does not seem to be any authority for the exception, and 
there is certainly no distinction in principle : besides, the point 
was expressly decided against the exception in Field, Adm'r, v, 
Eaton's Ex'ors.^ 

§ 128. It sometimes happens that an apparent gift of the 
same thing to two persons is reconciled by construction, so that 
they take at different times. Thus, in an old and anonymous 
case, Anderson, C. J. said, that if one devise land to J. S. in 
fee, and after by the same will devise that land to J. D. for life, 
both parts of the will shall stand ; and in construction of law, 
the devise to J. D. shall be first.* 

So in Chycke's case,^ the devise was, " I give the fee simple 

»1 Coop. Sel. Ca. 372 j 8 Eng. Ch. Rep. 484. 

219 Viu. Abr, 45 ; Cro. Eliz. 9. 

'1 Dev. Eq. 283; see also McGuire v. Evans, 5 Iredell's Eq. 269. 

4Cro. Eliz. 9. ^Dy. 357a. 



of my bigger house in Loper-lane to my cousin Alice Ludlam, 
and after her decease to WilUam L, her son," who was heir ap- 
parent, and Dyer reports that it was adjudged that the construc- 
tion was an estate for hfe to the mother, remainder for life to 
the son, remainder in fee to the mother. Bendloe and Anderson, 
however, report that the mother had but a life estate, and the 
son the fee in remainder. But they must have erred in their re- 
p>ort ; and Dyer's is the best opinion. In another case, at least, 
where A devised the fee of his land to B, his wife, remainder to 
C for life, remainder to D for life, it was held that B took an 
estate for life, with remainder in fee expectant upon the estates 
of C and D. ' 

§ 129. Another way in which the question of repugnancy may 
arise, is in regard to the quantity of interest given by the deed 
or will. Thus, if there be a gift of chattels personal "to A, 
his executors and administrators," or " to A and his assigns 
forever," — hahendum to him the said A for life — there is repug- 
nancy, and the hahendum is void, and the gift absolute. But if 
the habendum had been to him the said A, &c., for the life of B, 
the habendum would have been good.^ Lord Coke says : Note, 
reader, a difference between an estate in the premises imphed, 
and an estate expressed ; for if A grants a rent to B generally, 
the same by implication and construction of law is an estate for 
life; but if the habendum be for years, it is good, and shall 
qualify the generality and implication of the premises. ^ So if 
the gift be "to A, without more, habendum, to him the said A 
for life or years," the habendum shall control the premises which 
by implication would have passed the absolute title. And so 
also, if the gift be to A for life or for years, habendum to him 
the said A, his executors, administrators and assigns, or to him 
the said A forever, the habendum is void.'* This is said upon 

'8 Vin. Abr. (247) ^11. ^2 Lomax's Dig. 217. 

^Baldwins Case, 1 Kep. B. 2, p. 24. ■* Id. 


the supposition that partial interests in chattel personal may Le 
created by deed, and that quasi reversions are admitted to exist 
when partial interests in them are created, and there is no lim- 
itation over of the residue. 

Take the case of Porter v. Ingram, as one in point here. In 
that case, Daniel Porter, by deed, gave to his daughter a negro 
girl named Rose, " to have, hold and enjoy all and singular the 
said negro girl Rose, after my death^ to the said Phebe Porter, 
her heirs, executors, and assigns," &c. In delivering the opin- 
ion of the court, Mr. Justice Huger said : The deed of gift to 
Phebe is formally drawn. The premises, however, appear to 
be at variance with the habendum. In the premises Rose is 
given in prcBsenti, the habendum is in futuro. Where the pre- 
mises of a deed are not complete and perfect, resort must be 
had to the habendum, to ascertain the intention of the parties. 
It may then limit or extend, or even frustrate the premises. 
But when the premises are complete and perfect, and the haben- 
dum is at variance with them, and they cannot stand together, 
the habendum is void. The first part of a deed has priority in 
law as well as in fact, which is said not be the case with wills. 
3 Dy. 272; 14 Vin. 51, 56, 100, 141, 145. If, therefore, the 
habendum, to Phebe, after the death of the donor, be inconsist- 
ent with, and repugnant to the gift in prcesenti, set forth in the 
premises, the habendum is void, and Phebe was entitled to Rose 
from the date of the gift. It is unnecessary, in this case, to 
determine whether the premises and habendum may not be re- 
conciled, by regarding Phebe as taking Rose in trust for her 
father, during his life, and to her own use, after his death ; in 
either case she is now entitled to Rose, if the deed was not 
fraudulent, and Rose was delivered in conformity to its pro- 

§ 130. But the question of repugnancy can scarcely arise in 

'Harper's Law Rep. 492. 


this way in a will, for where inconsisteDt interests are given hy 
will to the same person, the legatee will take the larger interest^ 
v;nless there be something else in the will to control it. (a) In 
Ridout V. Pain, Lord Hardwicke said : Another objection has 
been started, that the residuary devise is to the same person 
who is before made tenant for life, and therefore inconsistent to 
give her the same thing in fee, which he had given her for life 
only, in the former part of the will. This objection deserves to 
be considered, but I think is not sufficient. It is a great deal 
too much, to say, that when a man makes a will, and gives a 
a person a particular limited estate in one part of that will, and 
afterwards devises to the same person in more general words, 
that the devisee shall not take benefit by such general residuary 
devise. * 

§ 131. The question of repugnancy may also arise between 
a gift and some provision inconsistent with it.^ Thus, if a tes- 
tator bequeath five hundred dollars to B for life, to be paid out 
of the proceeds of the sale of his real estate, and then direct 
that his real estate shall be sold after the death of B, there is a 
fatal repugnance. But if, as in the case of Sweet v. Chase, ^ 
the gift to B were absolute, then there would be no inconsisten- 
cy, and B would take a vested legacy, though its enjoyment 
would be postponed until his death. 

So in the old case of Dorrell v. Collins, the jury found that 
the masters and scholars of the college of Sinkford were seized 
in the time of Hen. 8, of the manor of Hodley, of which the 
place, &c., is parcel, and let all their lands in Lambehurst (ex- 

(a) For double legacies, see Ridges v, Monison et al. 1 Bro. Ch. R. 
389- Creveling v. Jones, 1 New Jer. 573; Cases 8 Viii. Abr. 308; Ford 
V. Ruxton, 1 Collier, 403; Manning v. Thesiger, 2 My. & Keene, 29; 
Guy V. Sharp, 1 Coop. Sel. Ca. 8; 8 Eng, Ch. Rep. 386; 10 Johns. 158, 

'3 Atk. 492. 

^Shoenberger v. Lyon, 7 S. & W. 184; Youde v. Jones, 13 Mees. & 
and Wels. (534.) ^2 Comstock's Rep. 73. 


cept tlie manor of Hodlej, in Kent and Sussex) to J. S. for 
years ; and they further found that the masters and scholars 
had no other lands in Lambehurst than the said manor. The 
question was, if the manor passed by the lease. And ail the 
court held, that it being found they had no other land than the 
manor, the exception was void, because it goeth to the whole 
thing demised ; otherwise of an exception of part. ' So in an- 
other old case where a man demised a house and shops except- 
ing the shops, the exception was held to be repugnant and void." 

So in Bradley v. Piexoto, the testator bequeathed the divi- 
dends of 1620/. bank stock to his son for life, and at his death 
the principal and interest to his heirs, executors, administrators 
and assigns, with a proviso that he should forfeit his interest if 
he attempted to alien it, and it should therefore pass to other 
children who would observe the tenor of his w^ill. The court 
held the proviso to be repugnant and void. ^ But that was not 
the question. 

So every general restraint upon alienation of the interest 
given, whether it be an interest forever or for a limited period, 
is repugnant and void. But a partial restraint imposed upon a 
a gift, whether of an absolute or partial interest, is good — at 
least if it be not as to a particular mode of conveyance."* Thus, 
a gift to B provided, that if he aliens to a particular person, or 
a gift to B to be delivered to him at twenty -five years of age, 
provided if he aliens before that age, it shall go over to C, the 
proviso is good ; and if violated, the gift over will take effect. 
The time, however, during which alienation may be restrained, 
does not seem to be fixed. ^ 

§ 132. But it is necessary very carefully to distinguish be- 
tween conditions and limitations. Thus, if there be a gift to 

'Cro. Eliz. b. ^Horneby v. Clifton, Dy. 2646. 

33 Ves. 323. nVare v. Cann. 10 B. & Cress. 433. 

^See Tilghman, C. J. in McWillianis, et al. v. Nisiy et als. 2 S. & R. 5l3. 


A , with a proviso that if he alien his interest, it shall cease^ it 
is a condition^ and being in restraint of alienation, which is inci- 
dent to property, it is unlawful as well as repugnant, and there- 
fore it is void ; hut a gift to A for life, or U7itil he shall become 
bankrupt, or until he shall attempt to sell the thing given, ac- 
cording to authoritVy contains no condition. It is held to be^ 
not a restraint imposed, but a limit fixed. But hear Lord El- 
don : In Brandon v. Robinson, he said : There is no doubt, that 
property may be given to a man until he shall become bankrupt.. 
It is equally clear, generally speaking, that if property is given 
to a man for his life, the donor cannot take away the incidents 
to a life estate ; and, as I have observed, a disposition to a man, 
until he shall become bankrupt, and after his bankruptcy over, 
is quite different from an attempt to give to him for life, with a 
proviso that he shall not sell or alien it. If that condition is so 
expressed as to amount to a limitation, reducing the interest 
short of a life estate, neither the man, nor his assignees can have 
it beyond the period limited. ' The case of Shoe v. Hale is in 
point. In that case, there was a bequest of an annuity for life, 
or until the annuitant should sign some instrument whereby 
he contracted or agreed to sell or charge the same, and in that 
event, the annuity was to cease and to fall into the personal 
residue, which was disposed of by codicil. The annuitant took 
the benefit of the insolvent act) and inserted the annuity in the 
schedule of his property. It was held that the annuity was 
at an end.- 

§ 133. But note, if the gift be to A for a limited period, or it 
is said, absolutely,'^ with a proviso that upon alienation, it shall 
cease, and the property shall pass to B, the proviso loses its 
character of a condition, and becomes a limitation which is vaiid. 

M8Ves. (433.) 2]3 ygs. 404. 

^Levv. on Trusts and Triis. (140.) The esses do not seem to go so 
far, but there seems to be no reason why they should not. 


This falls within the remark of Lord Elclon, in Brandon v. Rob- 
inson, and seems to have been the idea of the Master of the 
Rolls, in Wilkinson v. Wilkinson.' There is, indeed, no other 
ground upon which the cases can be sustained.^ 

So, if the proviso be that the interest shall cease upon the 
first taker becoming bankrupt, or taking the benefit of the in- 
solvent act. 

§ 134., Mr. Roper calls these limitations over conditional lim- 
itations, but they are, by construction, strictly quasi remain- 
ders. They would be void as conditional limitations, because 
an unlawful condition which is to defeat an interest is void, and 
therefore a limitation cannot depend upon it. The clause must 
therefore be a limitation either in fact or by construction. The 
gift, then, is an interest with a double aspect ; an interest vrith 
two limits, one absolute, the other until alienation; and therefore 
it is, that the gift over upon alienation is a quasi remainder. 
The cases, therefore, in order to be consistent, ought to hold the 
clause to be a limitation as well when there is no limitation over, 
as when there is. Not that they ought to hold that a proviso, 
or condition not to alien, is a limitation ; but they ought to hold 
the clause declaring that the interest shall cease upon alienation 
to be an original limit of the interest. 

§ 135. The cases seem, indeed, to have departed from prin- 
ciple in holding that a gift forever, or until alienation, is a 
gift until alienation, for it is nothing more than a condition per 
obliquum in restraint of alienation. They seem also to have de- 
parted from principle in allowing a limitation over to take effect 
in the event that the first taker aliens ; such limitation over is 
strictly a conditional limitation, for it is to take effect in defeas- 
ance of the prior limita.tion, and upon a condition that it is un- 

^3 Swans. 521. '^Sae 1 Rop. ou Le^^. 526. 


§ 1S6. An exception to the general proposition is tlms stated 
by Mr. Lewin : A person cannot settle his own property on him- 
self, with a limitation in the event of bankruptcy or insolvency^ 
though, on his marriage, if he receive a portion "with his wife, 
he may settle a fund of his own to the extent of his wife's for- 
tune; for though apparently a settlement by the husband, it is- 
in fact a settlement of the money advanced by the wife. ^ This 
last would not, of course, be true, if the marital rights were 
prevented by statute or otherwise from attaching to the wife's 

§ 137. But it has been a question, whether an alienation in 
invitum as by execution, is an alienation within the meaning of 
the proviso. Mr. Roper denies that there is any distinction j. 
but the cases establish that when it appears that the alienation 
intended was by the act of the party, then an alienation in in- 
vitum will not be held to be an alienation within the proviso. It 
is always a question of intention ; but the limitation, it is said^. 
must always be construed with great strictness.^ Thus in the 
case just cited, the words were, " in case they, or any or either 
of them shall charge, or attempt to charge, affect, or incumber 
the same, or any part or parts thereof respectively, then" &c.y 
and it was held that they did not extend to bankruptcy. 

But where an alienation in invitum is not included in the 
words, still if the party attempts an alienation under cover of 
such an alienation, his alienation will be held to be voluntary. * 

§ 138. Another instance of repugnancy between a gift and a 
provision inconsistent with it, is furnished by the cases in which 
the attempt was made to render the gift merely personal — cases 
in which the attempt was made to give a person the enjoyment 
of property without giving him the property itself. Thus in 

>Lew. on Trusts, (140.) ^i^ear v. Legget, 2 Sim. 479. 

2See Doe v. Carter, 8 D. & E. (300.) 


Green v. Spicer, there was a devise of real estate to trustees, 
"upon trust to let and manage the s"^ame, and receive the rents, 
issues and profits to or for the board, lodging, maintenance and 
support, and benefit of my son, Robert Pinning, at such times 
and in such manner as they think proper, for and during the 
term of his natural life ; it being my wish that the application 
of the rents and profits for the benefit of my said son may be at 
the entire discretion" of the said trustees, " and that my son 
shall not have any power to sell or mortgage, or anticipate in 
any way the same rents, issues and profits, or any rents, issues 
and profits, dividends or interests derived under this my will." 
The son took the benefit of the insolvent act, and the question was 
whether the assignees were entitled. The Master of the Rolls 
said : The question in this cause is, whether the testator's son, 
Robert Pinning, takes any estate or interest under the will, other 
than by the discretion of the trustees. Robert Pinning takes a 
vested life estate, of which the trustees cannot deprive him by 
any exercise of their discretion : they are bound to apply the 
rents, issues and profits for the benefit of Robert Pinning, and 
their discretion applies only to the manner of the application. ' 
So, in Snowden v. Dales, A assigned 800^. to trustees in 
trust during the life of J. D. H., or such part thereof as they 
should think proper, or at such other times and in such portions 
as they should judge expedient, to pay the interest to him ; or, 
if they should think fit, to lay it out in procuring for him diet 
and other necessaries, but so that he should not have any right 
to the interest, other than the trustees, in their uncontrolled dis- 
cretion should think proper, and so as no creditor of his should 
have any claim thereon, nor should the same be subject to his 
debts, disposition or engagements : and it was declared that after 
his death, the 800/. and all savings and accumulations of inte- 
rest, if any, should be in trust for his children, and if he should 

»1 Rus. &My. 395. 


have no child, then in trust for C. J. D. H. became bankrupt, 
and the question was, whether the assignees were entitled. The 
Vice-chancellor said: — It is plain, that the grantor did intend to 
exclude the assignees : and that object might have been effected 
if there had been a clear gift over. 

But the question is, whether there is any thing in the deed 
that amounts to a direction that the trustees shall withhold the 
payment of the interest and accumulate it, during the life-time 
of J. D. Hepworth, if they shall think fit. Although the words, 
" savings and accumulations," as they first occur, might bear 
that construction ; yet, taking the whole of the instrument to- 
gether, I think that the better construction is, that those words 
do not enable the trustees to withhold and accumulate any por- 
tion of the interest during the life of J. D. Hepworth. Accord- 
ingly, he declared the assignees entitled to the life interest. ' 

§ 139. But here a very important exception exists. If pro- 
perty be given in trust for the separate use of a married wo- 
man, with a proviso that she shall not anticipate or alien, the 
the proviso is valid. If, however, the gift be to a feme scle^ 
the proviso is null, as it would be if the gift were to a man; and 
so, if a married woman to whom such a gift is made becomes a 
widow, the proviso is invalid during her widowhood ; but if the 
feme sole or the widow afterwards marry, the proviso becomes 

In TuUet v. Armstrong, a testator gave property in trust for 
his wife for life, with remainder to M. A. T., then a feme sole, 
for life, in such manner that M. A. T. should not anticipate, 
sell, assign, or dispose of her interest, and in such manner that 
it should be for her sole and separate use. M. A. T. was un- 
married at the death of the testator, but she married in the life- 
time of the widow. 

'6 Sim. 524. 


The case was presented to Lord Chancellor Cottenham, upon 
appeal from the Rolls. 

The counsel in support of the appeal said there were two 
questions : 1. Whether a settlement to the separate use of an 
unmarried woman is good, and they admitted it to be so. 
2. Whether the restraint imposed upon anticipation in such case 
is good, and they contended that it was not. The Lord Chan- 
cellor, affirming the opinion below, held that the questions were 
identical in principle. That it was well established that a sepa- 
rate estate might be given to a woman, and that a proviso against 
anticipation and alienation was valid in such case. That wher- 
ever the separate estate was held to exist, the proviso imposed 
upon it must also be held to exist. That both the separate es- 
tate and the proviso were equally the creatures of equity, and 
equally inconsistent with the ordinary rules of property. That 
the proviso was but a qualification and restriction of the sepa- 
rate estate, and so must stand or fall together. He said : — 
When this court first established the separate estate, it violated 
the laws of property as between husband and wife, but it was 
thought beneficial, and it prevailed. It being once settled that 
a wife might enjoy separate estate as a feme sole^ the laws of 
property atta-ched to this new estate ; and it was found, as part 
of such law, that the power of alienation belonged to the wife, 
and was destructive of the security intended for it. Equity 
again interfered, and by another violation of the laws of proper- 
ty, supported the validity of the prohibition against alienation. 
In the case now under consideration, if the after-taken hus- 
band be permitted to interfere with the property given or set- 
tled before the marriage to the separate use of the wife, much 
of the benefit and security of the rules whioh have been so es- 
tablished will be lost. Why then should not equitj^ in this case 
also interfere? — and if it cannot protect the wife consistently 
with the ordinary rules of property, extend its own rules with 
respect to the separate estate, so as to secure to her the enjoy- 


ment of that estate which has heen so invented for her benefit ? 
It is no doubt doing violence to the rules of property, to say 
that property, which, being given with qualifications and re- 
strictions which are held to be void, belonged absolutely to the 
woman up to the moment of her marriage, shall not be subject 
to the ordinary rules of law, as to the interest which the hus- 
band is to take in it ; (and that is the sense, and the only sense, 
in which the expression used in Massey v. Parker, " why may 
she not by the act of marriage give it to her husband," is to 
be understood) but it is not a stronger act to prevent the hus- 
band from interfering with such property, than it was orignally 
to establish the separate estate, or to maintain the prohibition 
against alienation. In doing this, I feel that I have much to 
overcome, of which the observations thrown out by mj^self, in 
Massey v. Parker, is the only part of which I do not feel the 
important weight. I have to contend with Lord Brougham's 
observations in Woodmeston v. Walker, and the Vice-Chancel- 
lor's decisions in Newton v. Reid, Brown v. Pocock, Malcolm 
v, O'Cailaghan, Johnson v. Fruth, and Davis v. Thornycroft, 
to which I have before adverted, and the doctrine now establish- 
ed, though denied by Sir John Leach in Brown v. Pocock, and 
Woodmeston v. Walker, that before marriage or after the cov- 
erture has determined by the death of the husband, the settle- 
ment or gift to the separate use, and the prohibition against an- 
ticipation are wholly inoperative and void. 

In establishing the validity of the separate estate with its 
qualification, which constitutes its value, that is the prohibition 
against anticipation, I am not doing more than my predecessors 
have done for similar purposes, and I have much satisfaction in 
finding myself justified, upon the grounds I have stated, in do- 
ing what in me lies to dissipate the alarm which has prevailed 
lest the separate estate should be held not to exist at all during 
the subsequent coverture, or what would in many cases be a 


greater evil, tLat it should exist without the protection of the 
clause against alienation. * 

§ 140. But this exception is not confined to gifts in trust ; it 
extends also to gifts when made, without the intervention of a 
trustee, for the separate use of a woman with a proviso against 

§ 141. If property be purchased by the woman whilst she is 
unmarried, with the savings of her separate estate, and she af' 
terwards marry, the marital rights attach to such property ; 
but if the separate property were exchanged for other property, 
or the separate property were sold by the woman before her 
marriage and other property bought with the proceeds, or the 
proceeds retained, the trust would follow the property into its 
new form. And so must the remark of the Lord Chancellor in 
Newlands v. Paynter be taken : " the principle of my decision 
was that the subsequent marriage attaches upon the property 
as it is." 

§ 142. The marital rights will also attach to property pur- 
chased by the wife, during coverture, with the rents and profits 
of her separate estate, unless, indeed, she act in such case as 
the agent of the trustee,^ or unless there be some agreement 
between them that the property so purchased shall be part of 
the separate estate. ■* If the property be so purchased by the 
trustees, or by the husband, when no trust is interposed, princi- 
ple seems to require that the marital rights should be excluded. 
So much for the exception and its extent. 

§ 143. Another illustration of repugnancy between a gift and 
a provision ia it is to be found in the case of Weatherford v. 

'4 My. & Craig, 377; Scarborough &i Borman, Id. 
^Newlands v. Paynter et als. 4 My. & Craig, 408. 
^Carne v. Brice etal. 7 Mees. & VVels. 183, and note. 
*See Shirley v. Shirley et al. 9 Paige 363, and note (a). 


Tate.' In that case, there was a bequest of slaves to A, for 
life, and after his death to the lawful heirs of his body, with a 
provision that they should not be removed out of the State, and 
it was held that A took the slaves absolutely, and that the pro- 
vision was void. 

§ 144. The question of repugnancy may also arise between 
limitations over and previous limitations ; and here the general 
rule is, that where the whole interest has been limited, there 
cannot be a limitation over, except by way of conditional limita- 

§ 145. There are three classes of cases which seem to fall 
within the general rule, and in which the limitations over are 
therefore void for repugnancy. 

^ 146. The first class consists of those cases in which there 
is an absolute gift of the property to one person, and then a gift 
over of so much of the property as shall be left at a certain 
time to another person. The leading case of this class is Attor- 
ney General v. Hall ; and it is thus stated in the Abridgments : 
W. H. being seized and possessed of a considerable real and 
■personal estate, makes his will on the 16th of February, 1717, 
in these words : Item, I give and bequeath all my real and per- 
sonal estate unto my son F. if., and to the heirs of his body, to 
his and their use, to be paid unto him in three years after my 
death, and during that time I make Sir J. N. executor of this 
my will, and after the three years expired, I do appoint that my 
said son F. shall be executor; and if my said son F, H. shall 
die leaving no heirs of his body living, then I give and bequeath 
so much of my said real and personal estate as my said son shall 
be possessed of at his death, to the Goldsmith Company of Lon- 
don, in trust for several charitable purposes mentioned in his 

»2 Strob. Eq. 27. 


will ; but my will is, that the company shall not give my saiJ 
son any disturbance during his life. The testator dies, and 
after the three years, F. H. takes upon him the execution of the 
will, and in sometime after, suffers a common recovery of the 
real estate ; afterwards he makes his will, and the defendant, 
his then wife, executrix thereof, and then dies without issue. 
The court was unanimous, that the limitation over was void, 
as the absolute ownership had been given to F. H., for it is 
to him and the heirs of his body ; and the company are to have 
no more than he shall have left unspent, and therefore he had 
a power to dispose of the whole ; which power was not expressly 
given to him, but it resulted from his interest ; the words that 
gave the estate tail in the land must transfer the entire property 
of the personal estate, and then nothing remains to be given 
over. ' There is another statement of the case given in the 
margin in Eq. Ca. Abr., and the reason of the ruling of the 
court there given, is : " In regard the ownership and property 
of the personal estate was vested in F. Hall, and not the use only, 
the limitation to the company is void. It is giving a man an 
estate in money to spend, and limiting over to another what does 
not happen to be spent." But the words " and not the use only,'^ 
could not have formed a part of the reason of the court ; for it 
had been previously decided by the cases cited by the counsel, 
that a gift of a chattel personal for a limited period was but a 
gift of the use of it ; and, therefore, had the gift over been oth- 
erwise unobjectionable, the court would have held that the gift 
of the personal estate to the son w^as but a gift of the use. It 
is true, however, that the Solicitor General who argued against 
the validity of the limitation over, said : It is plain he might 
have aliened it all, for the devise over is only of such part as 
he should be possessed of at his death : and the difference is 
where the thing itself, as here, and where the use only is devis- 

'8 Via. Viii. Abr. 103, ^50; 1 Eq. Ca. Abr. 293, ^ 21. 


ed ; and cited Clarges Mil. v. Dacissam, 2 Vern. (2i5) ; and 
referred also to 2 Vern. 600 ; but the reference is supposed to 
be to Hide v. Parrat, 2 Vern, (331). 

The true ground of this decision, then, is that the son had 
the absolute power of disposition, as an incident to his interest, 
and the gift over was therefore repugnant. There was no right 
of property upon which the gift over could operate. But it is 
clear, if the gift had been to Francis Hall and the heirs of his 
body, with a limitation over of the personalty, and not of what 
should he then leftj in case he should die without leaving heirs of 
his body living at his death, that heirs of his body would be 
construed to mean children, and the limitation be allowed to 
take effect as an executory bequest. * It may be added, that 
the remark, that ; " The recovery, although it could only affect 
the freehold, yet showed an evident intention to acquire the do- 
minion of all the property devised by the father's will,"- is 
calculated to mislead, and is utterly foreign to the true ground 
of the adjudication. 

In Riddick v. Cohoon, the testator gave to his daughter Bet- 
sey Cole, her heirs and assigns forever, certain real and person- 
al estate, and then proceeded : Item, it is my will and desire, 
that if my aforesaid daughter, Betsey Cole, shall die without 
lawful heir or issue of her own body, that then, all the lands, 
and all the other estate, I have herein given to my said daugh- 
ter Betsey, that shall be left remaining at her death, be equally 
divided to and between my aforesaid three sisters, namely, 
Christian Cole, Mary Cole, and Esther Cole, to them, their 
heirs and assigns forever." Betsey Cole died without issue, 
and the question was, whether the limitation over was valid. 
The court upon this point said ; It is clear that he intended to 
give his daughter an absolute power of alienation ; and in that 
case, could not control the property not disposed of by her, as 

4de v. Ide, 5 Mass. 500 ^Bourn v. Gibbs, 1 Tamlyn, 41 4. note 


such control would be inconsistent with the nature of the estate 
given to her, and the limitation void for the uncertainty as to 
what property was to go over. ' It seems, however, to be void 
for the certainty that there was no property to go over by virtue 
of the limitation, since the whole had already passed under the 
preceding limitation, and with it an absolute title. 

In Flinn v. Davis et al., the testator gave to his daughter and 
the heir or heirs of her body, real and personal property, and 
then provided : '' If my said daughter should die without leav- 
ing issue from her body, then I will and ordain that all the es- 
tate which she may die possessed of, or entitled to, both real 
and personal, under and by virtue of my will, shall go to and be 
equally divided between Benjamin Davis and Lucy Ann Davis, 
and to their heirs, and to hold the same, share and share alike, 
forever.'' The daughter died without leaving issue at her death, 
and the question was whether the limitation over was good- 
At the June Term, 1849, Dargan, J. delivered the opinion of 
the court, Chilton J. dissenting. After stating the general rule, 
that an absolute pov/er of disposition is inconsistent with a gift 
over, and therefore renders it void, and citing several cases to 
that effect, he says : If we ask the question, what estate or pro- 
perty did the testator devise over, the answer will be, all his 
daughter was possessed of at the time of her death, and all that 
-she was entitled to under the will. What then was the mean- 
ing of the testator 7 Did he intend to devise over only such as 
she might be possessed of? I think not. But he intended to 
give over, not only such as might be in her possession at the 
time of her death, but all that she took under the will, whether 
in her possession or not. Had the testator stopped at the words 
" possessed of," this case would have fallen directly within the 
case of Jackson v. Bull, 10 John. 19, but he adds the words, 

^4 Leigh, 547 • and so is Tde v. Ide, 5 Mass. 500 , Jackson v. Robins, 
16 Johns. 584: McDonald & Wife v. Walgrove et al. 1 Sand. Ch. R. 274. 


*' or entitled to under and bj virtue of my will." These words 
enlarge the devise over, and in mj opinion were designed to em- 
brace all the estate that his daughter should be entitled to re- 
ceive from the hands of his executors under the will. The lan- 
guage is at least capable of this meaning, and by thus constru- 
ing it, we carry out one of the obvious designs of the testator, 
by sustaining the remainder over. But by impl^^ing from this 
language an absolute power of disposition, we defeat one of the 
manifest objects of the testator, and this too, by placing a con- 
struction upon language capable of bearing a meaning entirely 
consistent with the expressed intention of the testator. I hold 
it to be a sound rule of construction, that if the language be 
capable of two distinct meanings, one of which would sustain, 
but the other defeat a plain and manifest design of the testator, 
we should so construe it as to support the manifest intention, 
and should not imply an intention repugnant to the expressed 
will of the testator, unless the language will bear no other rea- 
sonable construction. Even then, if it were doubtful whether 
the testator intended his daughter should have the power of dis- 
posing absolutely of all the property he devised to her by the 
will, this doubt should not defeat the remainder over. That 
the testator intended to create a valid remainder over is beyond 
doubt, and the language, from which it is argued he has defeat- 
ed this remainder, is capable of conveying a meaning that will 
support it'; we cannot, therefore, defeat the remainder without 
giving effect to a doubtful intention at the expense of one of the 
plain and manifest designs of the testator." 

But Collier C J. having resigned, and Parsons J. being ap- 
pointed, the court, upon re-argument, came to a different con- 
clusion, though Dargan, then Gh. J., still adhered to his opinion. 
The ground upon which the majority based their conclusion was, 
that the testator had given to the daughter the absolute power 
of disposal, and that the gift over was of what should be left 
undisposed of by her at her death, and therefore that the gift 


over was repugnant and void. Chilton, J. said that the rule 
was equally applicable to real and personal property, and add- 
ed : Nor does it make any difference, whether the first taker ha.^ 
exercised the power of alienation or not." And Parsons, J. 
said, that the absolute power of disposition might arise by im- 
plication, and that whether the testator intended to give such 
power of disposition was a question which must be determined 
from the will. ^ 

It may be added that the conclusion of the majority of the 
court upon the re-hearing seems to be sound and satisfactor}' ; 
though it is very clear that, if the testator intended that the 
whole of the property should pass in the event, the limitation 
over was good as an executory bequest. 

§ 147. But this class of cases must be carefully distinguished 
from those in which the first gift is, either expressly or by im- 
plication, but for a limited period,^ 

§ 148.- The second class of cases consists of those in which 
there is a gift of property to one person with a gift of it over 
in the event of the non-disposition of it by the first taker. 

This class includes cases in which there is a gift to a person 
and his heirs, or heirs of his body ; or to one and his executors, 
administrators and assigns, with or without an express power of 
disposition, and there is a gift over in case of non-disposition 
generally » Thus, if there be a gift to A and his heirs, and if 
be does not dispose of the property by deed, or will, or other- 
wise, then at his death to B, it is said that the gift to B is re- 
pugnant and void. 

§ 149. The difficulty in this class of cases lies in determining 
whether a gift over, in the event that the first taker does not 
dispose of the property in a particular way, may not take effect 
as a conditional limitation. And here there is conflict of opinion. 

'18 Ala. 132, =^See "Certainty;' 


In Grey et al. v. Montague et aL, the testatrix bequeathed all 
iier personal estate — after payment of her debts, funeral expen- 
ses, and certain legacies — to her son, and after reciting that she 
bad a power to appoint oOOO/., she proceeded : Now I, the said 
Elizabeth Rogers, by this my last will and testament, do hereby 
appoint and order, that upon the death of my said son without 
issue, or in case my said son does not dispose either by will or 
deed, which shall first happen,*' that then it shall go over to 
divers persons. The son died without issue, and without hav- 
ing made a deed, or will, and a bill was filed praying payment 
of the legacies. Lord Chancellor Northington dismissed the 
bill and there was an appeal ; and upon appeal it was contended, 
that the words upon the death (f my son without issue did not 
import an indefinite failure of issue, but a failure of issue at 
bis death. But even if the words were construed to mean^ 
dying without issue generally^ yet in this particular case it was 
apprehended that the legacies were not void, but took effect 
upon the happening of that event. That the words of the will, 
in case my son dees not dispose either hy deed or will^ which 
shall first happen^ did not give, or were intended to give him 
the absolute property of the 3000/., but merely a power of ap- 
pointing by deed or will, which he might execute or not, as he 
thought proper. That the legacies being given to take place 
upon a certain event, not contrary to law, and the event having 
happened, the legacies were valid, and ought to be raised and 

On the other side it was argued, that no personal property 
can be limited to take place on so remote a contingency, as the 
death of a person dying without issue generally ; and that there 
was nothing in this will to restrain the contingency to the time 
of the son's death. That it was a limitation over to other per- 
sons, after the absolute interest was vested in, and an unrestrain- 
ed power of disposition given to the son. That the testatrix 
seemed to have imagined, that she might by law make further 


limitations of personal property, after such a remote contingen- 
cy, and an absolute power of disposition ; but in tliis she was 
mistaken, such limitations having been long since settled to be 
null and void. The appeal was dismissed and the decree affirm- 
ed ; but the reason is not given. ^ 

In Green v. Harvey,^ the suit was instituted to determine 
the construction of the following clause in the w^ill of R. Green, 
made in 1819 : 

" The house No. 4, in the Royal Crescent, with coach-houses 
and stables belonging to No. 4, I give and bequeath to my sor. 
Richard, with all the household furniture, plate, &c., thereunto 
belonging. Should he die without heir or will, the profits of the 
said No. 4 to be equally divided between all my grand-children 
by the consent of his mother." The premises comprised in this 
gift were lease-hold. Richard, the son, survived the testator, 
and died unmarried and intestate ; and his personal representa- 
tives claimed to be absolutely entitled to the property. The 
grand-children of the testator claimed the same property under 
the bequest over in the events which had happened. 

The Vice-Chancellor, Sir James Wigram, after construini; 
the "word "or," in the phrase " without will or heir," as mean- 
ing " and," said : The next question is the effect of the limita- 
tion over, in the event of Richard dying without a will. The 
gift to Richard is absolute in the first instance ; and the general 
rule of law is, that an absolute interest is not to be taken away 
by a gift over, unless that gift over may itself take effect. Now, 
it has been repeatedly decided, that wdiere a legacy is given ab- 
solutely, and a gift over is superadded in the event of the lega- 
tee dying without having disposed of his legacy, the gift over 
is void, and the legacy is absolute. Ross v. Ross, 1 Jac. & W. 
154 ; Bradley v. Peixoto, 3 Ves. 324. 

He added ; The question, then, is, whether there is any dif- 

^6 Bro. Par. Ca. 429. M Hare. 428; 23 Eng. Ch. Rep. 429 


ference between a gift overj in the event of the legatee not dis- 
posing of the legacy, and a gift over in the event of his not dis- 
posing of it bv will. I think no such distinction can be main- 
tained. The will of Richard is not to be the exercise of a power, 
but an incident to property which is sufficient to place the whole 
at the absolute disposal of the legatee. And accordingly, the 
Vice-Chancellor declared the gift over void, and the personal 
representative of Richard entitled to the leasehold premises. 

Subsequently to the preceding was determined the case of 
Doe d. Stevenson v. Glover. In this case there was a devise 
" unto my son, Mordecai .Glover, and his heirs and assigns for- 
ever ; to hold to him and to his heirs and assigns forever : but, 
in case my said son, Mordecai Glover, shall happen to depart 
this life without leaving any issue of his body lawfully begotten 
then living, or being no such issue, and he my said son shall 7iot 
have disposed and parted with his interest of, in, and to the 
aforesaid" premises, then there was a devise over to Ann Ste- 
venson, an illegitimate daughter of the testator. Mordecai 
Glover, the son, made a will devising the premises to his wife in 
fee, and died seized of the premises, and without any issue of 
bis body living at his death. 

There were two questions in the case : 1. Whether the de- 
vise by the son was a disposing of and parting with the premi- 
ses according to the intention of the father : 2. Whether, if 
the gift over was upon a non-disposition by deed, it was a good 
executory devise. 

In the argument of the case for the devisee of the son, Ga- 
selee Sergt. said: In Jarman on Wills, vol. 1. p. 809, it is 
said : Conditions that are repugnant to the estate to which they 
are annexed, are absolutely void. Thus, if a testator, after 
giving an estate in fee, proceeds to qualify the devise by a pro- 
vho or condition wdiich is of such a nature as to be incompatible 
with the absolute dominion and ownership, the condition is nu- 
gatory, and the estate is absolute." [Tindal C. J. The author 


is there showing the distinction between conditions, strictly so 
called, and limitations.] If such be the opinion of the court, 
it is still submitted that the condition has been well performed 
by a disposition of the estate by Mordecai Glover, the son, hy 
his will. The intention of the testator evidently w'as, that the 
son should have full and absolute dominion over the estate. If 
the word used had been '' disposed " only, it clearly would have 
comprehended a disposition by .will ; and this construction is in 
no degree w^eakened by the addition of the words " parted with," 
which, though not so applicable to a testamentary disposition, 
when taken in conjunction with the other words^ sufficiently 
shows that such a mode of parting with the property was within 
the testator's contemplation. 

Sir S. Wilde,, in reply, was stopped by the Court. 

Tindal, C. J. This case appears to me not to fall within the 
doctrine that has been relied on by my brother Gaselee, for the 
purpose, of showing that the provision in the will of Mordecai 
Glover, the father, upon which the claim of the lessor of the 
plaintiff is founded, is in the nature of a condition that is repug- 
nant to, and incompatible with, the prior absolute gift to Mor- 
decai Glover, the son. Strictly and properly, it is an executory 
devise, cutting down the interest which the son was to take, up- 
on the happening of certain events, which have happened. The 
only question, therefore, for our consideration, is, what was the 
intention of the testator 1 Upon that, also, the case appears to 
me to be free from doubt. The words, "parted with," which 
are in opposition to, seem to me to be explantory of, the prior 
and more general word, " dispose," and clearly to indicate a 
disposition, or parting with the estate by the devisee, by a con- 
veyance that was to have its complete effect and operation m 
his life-thne. If parted with had been the sole phrase used, it 
could only have been satisfied by a conveyance by deed execu- 
ted by the party in his life-time : and, when we find the two ex- 
pressions thus coupled together, I think we cannot give a more 


extended interpretation to the word " disposed," than the sen- 
tence would have been susceptible of if that word had not been 
found in it. But, even if it had rested upon the word " dis- 
posed," I should have inclined to hold, upon the principle that 
a will is ambulatory and speaks only from the time of the testa- 
tor's death, that a devise of the estate in question was not a 
disposing of it, within the meaning of the will. The fair in- 
ference arising from the whole scope of the will, tends to the 
same conclusion. The testator, in the first place, gives the es- 
tate to his son, and to his heirs, should he have any ; and he 
gives him a full power to dispose of it in his life-time. And 
this was by no mea^ns an unreasonable mode of dealing with the 

€oltman, Creswell, and Earle, Justices, eacl:w delivered opin- 
ions concurring with the Chief Justice. ^ 

In commenting upon this case, Mr. Lewis says : The Court 
held that the proviso referred solely to a disposition by the first 
devisee, which would take efiect in his life-time, and not to a 
disposition by will, and this gift to take effect, in the event of 
there being no such disposition by deed, the Court held valid, as 
not being repugnant to any rule of law. Whether the Court in- 
tended to draw a distinction between a clause contemplating a 
total failure of disposition, and one that referred to a uon-dispo~ 
sition in a particular mode, or whether the Court distinguished 
between gifts of realty and of personalty, the report does not 
enable us to determine, though certainly as far as the statements 
of the learned Judges extend, no ground is furnished to suppose 
that they intended to rely on either of the distinctions suggested. 
But, whether or not there be reason in such distinctions, the va- 
riance between the conclusions in Green v. Harvey and Doe v. 
Glover, is not to be accounted by reference to them ; for, in 
Green v. Harvey, equally with Doe v. Glover, the subject-mat- 

'1 M. G. & Scott, 448, 50 Eng, Com. Law Rep. 447. 


ter was land, though of leasehold tenure, and the disposition, 
the absence of which the gift over provided for, was not a dis- 
position in any form, but a disposition in one mode only, viz : by 
will. At present, therefore, these authorities are opposed : but, 
as it is a question not itself belonging distinctly to the present 
work, we must leave it, with the observation that the case of Doe 
v. Glover, as conflicting with several most respectable authorities, 
and as not furnishing any intelligible distinction in point of doc- 
trine, cannot stand concurrently with the law, which has been 
generally considered deducible from those authorities. If the 
doctrine of Doe v. Glover be sound, it is not a rule of the En- 
glish law, that a gift of land on the death of a prior devisee in 
fee, without disposing of his estate, is invalid ; for it seems quite 
hopeless to maintain any distinction between a provision for an 
omission to dispose of the property in any way, and an omission 
to dispose of it in one way. The only chance left for maintain- 
ing Doe V. Glover and the older cases, is the possible soundness 
of the distinction formerly taken in this particular between a 
gift of real and of personal estate ; in which, however, there 
seems but little substance. ^ 

§ 150. It is certainly true that the principle involved recog- 
nises no distinction between real and personal property; besides, 
the point was made in Jackson v. Robins, and expressly denied. - 

§ 151. But, in order to obtain a correct view of the principle, 
' it will be necessary to go back a little. At common law, every 
gift of a fee passed the whole property out of the donor, and any 
subsequent limitation of the property was therefore repugnant. 
Then came the doctrine of conditional limitations, by which a 
fee once given may, upon the happening or non-happening of an 

'Sup. Lew. on Per. (70,) 40 Law Lib. 

2 16 John Rep; 586; see, also, Allen & Wife v. White, adm'r, 16 Ala. 
181 ; Flinn v. Davis d d., 18 Ala. 132. 


event, be made to cease, and the property to pass to another 
person. But the subsequent gift must be a limitation. The 
general and absolute power of alienation is one of the component 
parts of a fee simple, and if the gift over is not to defeat that, 
as well as every other incident of the estate, it cannot be said 
to be a limitation. If, therefore, property be given to A in fee, 
and if he shall not dispose of it by deed, will, or otherwise, then 
at liis death it shall pass to B; A during his life is the absolute 
and unqualified owner of the property, for in no event is his es- 
tate to be defeated. The gift over is, therefore, the gift of a 
right of property which is already given, and given without lim- 
itation^ and therefore it is repugnant. Repugnancy does not 
relate to the rem, but to the jus ad rem. The gift over, in or- 
der to be a good conditional limitation, must therefore be limited, 
to take effect upon the happening or non-happening of an event, 
w^hich impends over the jus ad rem. Suppose, then, that a 
limitation be made to A and his heirs, but if he should die with- 
out a son living at his death, then the estate shall pass to B and 
his heirs. The event impends over the jus ad rem. But sup- 
pose that the limitation be to A and his heirs, and if he should 
die without making any disposition of the estate by deed, or 
will, or otherwise, then the estate shall pass to B and his heirs, 
there the event does not impend over the jus ad rem^ which is in 
A. If, however, the gift be to A and his heirs, but if he shall 
not dispose of the property by deed, then at his death, it shall 
pass to B, the event impends over the jus ad rem. And so^ 
also, if the gift to B were limited to take eifect in the event that 
A did not dispose of it by will, the event impends over the jus 
fid rem which passed to A by the previous limitation. The dis- 
tinction may be a nice one, but it is a plain one in principle. 
The question, as we have said, is not as to the rem, but as to the 
jus ad rem. In the one case, there is no right of property up- 
m which the second limitation can operate; in the other, there is 
I right of property upon which it can operate. In the one case, 


i has the absolute and unqualified ownership of the property ; 
m the other, his ownership was always qualified. If, in the first 
case, A had aliened in fee, as he might have done, and then died 
without a son living at his death, his alienation would have been 
defeated by the event; but, in the next case, no right of owner-, 
.-hip, which he might have chosen to exercise, could in any wise 
be afi'ected by the event. 

§ 152. But it is often laid down as a rule, that it is essential 
to the validity of an executory devise, or bequest, that it cannot 
be defeated by the first taker, and the reason given for the rule 
s, that such executory limitation is repugnant. The rule, how- 
ver, is incorrectly stated, for a devise to A in fee, but if he 
my not twenty dollars to B within a year, then to B; or a devise 
to a widow, but if she marry, then to B, are undoubtedly cases 
in which the executory devises are good, and yet they may be 
defeated by the first takers. And so Cresswell, J., in deliver- 
ing his opinion, in Doe v. Glover, said : " The son might have 
prevented the devise over from taking effect, by disposing of the 
property in his life-time," and such was the opinion of the whole 
court. It is essential, however, to the validity of an executory 
devise or bequest, that the first taker have not the power to de- 
feat it in the event upon which it is limited. ^ The only extiep- 
tion to this rule is, that a tenant in tail may, before the event 
iappens, suffer a common recovery, and thereby defeat an exe- 
'utory devise engrafted upon his estate. The same principles 
v'hich govern executory devises govern also executory bequests; 
ut as personal property cannot be entailed, the rule above laid 
lown, in its application to personal property, stands without a 
single exception. 

§ 153. The conclusion, then, is, that Doe v. Glover is en- 
tirely consistent with principle. 

'See Allen V. White, 16 Ala. 181 


§ 154. There are cases, however, which seem at first sight to 
be inconsistent with it. The case of Green v. Harvey is one, 
but it may well be placed upon the doctrine of remoteness; for, 
under the construction of the Court, the limitation over was to 
take effect upon A dying without will and heir. The same con- 
struction may be given to "or," in Grey v. Montague et al.^ 
and the case then placed with Green v. Harvey, upon the doc- 
trine of remoteness. 

The case of Bradley v. Peixoto, cited as an authority in Greei^ 
V. Harvey, does not touch the point. It was a condition in re- 
straint of alienation, that was involved in that case, and that i.^ 
an entirely different matter. The case of Ross v, Ross, also 
cited in Green v. Harvey, is not in conflict with Doe v. Glover; 
for there the bequest was of a legacy to A, to be paid at 25, or 
between 21 and 25, if the executors should think proper, and 
maintenance in the meantime ; with a limitation over in case A 
should not receive or dispose of it by will, or otherwise, in his 
life-time ; ^ and therefore the limitation over was repugnant and 
void, according to the principle. 

In Cuthbert v. Furrier, where a gift was made by will to the 
testator's natural son, to be paid to him at 21, with a bequest 
over, in the event of his dying under that age, or afterwards, 
without lawful heirs and intestate ; it was held, that the limita- 
tion over was not good, upon the ground that a person, after in- 
vesting another with the absolute property, cannot give it over 
in the event of the legatee's not exercising that power, which is 
incident to and a consequence of property. The case of Ross 
V. Ross was referred to by the Master of the Rolls as decisive 
of the point. ^ But take another case : In Mifflin v. Neal, adm'r, 
Ann Mifflin bequeathed to her two sons the residue of her per- 
sonal estate, " and in case either of them died without will or 
lawful issue," then his share to go the survivor. One of them 

'2 Bridg. Eq. Dig. 347. ^jac. 415. stated 2 Fearue, § 667 


died without issue and intestate, and tlie Court held that his 
share passed to his surviving brother. ' 

§ 155. The principle, then, is, that a limitation over may 
take effect as a conditional limitation, if limited to take effect 
upon an event which qualifies the absolute title in the first taker; 
and if it is to take effect in case of non-disposition in everyway 
except one, then the event qualifies the absolute title, and the 
gift over is therefore good. 

§ 156. This second class includes, also, it is said, those cases 
in which there is a gift expressly for a limited period, with a gen- 
eral power of disposition to any person, and in any way. Thus, 
in Goodtitle v. Otway, there was a devise to one for life, who 
was heir at law, and after to her issue, and if she shall have no 
issue, that she shall have power to dispose thereof at her will 
and pleasure. It is said : After argument at the bar, the 
whole court was of opinion that Agnes, the devisee for life, had 
an estate in fee simple by the will, as the contingent remainder 
to the issue never vested ; that the testator by giving her power 
to dispose thereof at her will and pleasure, in case she had no 
issue, has given her a fee simple, according to what is said by 
Sergeant Shuttleworth in 1 Leon. 283, where the words are the 
same as here ; but supposing these words did not carry a fee 
simple, yet as she was heir at law, the fee descended to her upon 
the death of the testator, and she having no issue, it was never 
out of her. Against this opinion was cited 3 Leon. 71, where 
the like devise was only held to be an estate for life, with autho- 
rity to dispose of the reversion; but the court said that case was 
not law, and that the case in 1 Leon. 283^ was determined after 
that in 3 Leon. 71.^ 

§ 157. It may be remarked of this case, that as the devisee 
for life took the fee by descent, the question upon the will was 

"6 Berg, & R. 460. n Wils. 6. 


not fairly before the court, and we may therefore regard the de- 
cision of it as obiter dictum. 

§ 158. In the case in the first of Leonard's Reports, the de- 
vise was to the testator's wife during her widowhood, remainder 
to A in tail, and if A died without issue in the life- time of the 
wife, that then the land should remain to her to dispose thereof 
at her pleasure. A died in her life-time, without issue, and it 
was determined that the wife took a fee simple. The Court re- 
lied upon the words of the limitation of the remainder to the 
wife, Quodintegra remaneat didce Edythce. In this case, then, 
it was the remainder which passed the fee to the devisee, and 
this case therefore is not an authority for the position that a 
general power of disposition cannot co-exist with an express es- 
tate for a limited period. And if it may co-exist, as a mere 
power, a limitation over in default of its exercise cannot be held 
to be repugnant. 

§ 159. The case of Irwin v. Farrer is also cited as an autho- 
rity for the position, that a gift for a limited period, with a gen- 
eral power of disposition, passes the whole property, and there- 
fore renders repugnant any limitation over in default of the 
exercise of the power of disposition. In that case, there was a 
gift in trust to be laid out in stock, and to pay the dividends as 
they became due to A for life ; and after her death to pay the 
principal, according to her appointment by will or otherwise, and 
the Court, upon a bill praying that the whole be paid to her for 
her own use, declared their opinion, that under this will the leg- 
atee had an absolute power of disposition over the whole fund : 
that the demand by the bill was a sufficient indication of her 
intention to take the whole for her own benefit ; and the execu- 
tion of a formal appointment in writing was not necessary. ^ 

'As stated 1 Siig. on Pow. 102. ajg Ves. 86. 


§ 160. This case turned upon the exercise of the power ot 
disposition, and cannot therefore be claimed as authority for the 
position ; it isy indeed, an authority on the other side. 

§ 161. Barford v. Street is also cited as an authority, and in 
that case there was a gift by will of real and personal property 
in trust to pay the rents and interests to Mary Barford for life, 
as the same should be received, for her separate and exclusive 
use and benefit, and after her death to convey to such person or 
persons, and in such proportions and at such time or times, and 
in such manner, as she in lifetime should by any deed or deeds, 
writing or writings, executed by her and duly attested, or by 
her last will and testament in writing, or any writing purporting 
to be her last will, signed and published by her, and duly at- 
testedy limit or appoint; and in case of her death before the tes- 
tatrix, or in default of SHch appointment, then the trusteed 
should sell all of the said property and divide the proceeds 
among certain persons. There was a codicil, but it is suflSciently 
noticed by the Master of the Rolls, who said : What do you 
contend to be the nature and extent of her interest 1 An estate 
for life w^ith an unqualified power of appointing the inheritance^ 
comprehends every thing. What induced me at first to doubt^ 
was the indication of an intention, in the codicil, that the estate 
should remain in the trustee for life of the plaintiff, (Mary Bar- 
ford,) with powers to her inconsistent in a great degree with the 
supposition of her having, or being able to acquire, the absolute 
interest. But I do not think I can by inference from thence 
control the clear and express words by which the power is given 
to the devisee to dispose of this estate in her life-time, by any 
deed, or deeds, writing or writings, or by her last will and testa- 
ment. How can the Court say, that it is only by will that she 
can appoint? By her interest she can convey her life estate. 
By this unlimited power she can appoint the inheritance. The 
whole equitable fee is thus subject to her present disposition. 


The consequence is, that the trustee must convey the legal fee 
accordmg to the prayer of the bill. ^ 

§ 162. Now in this case Mmry Barford had by deed properly 
attested, directed the trustees to convey to her, and therefore 
she was entitled to the equitable fee, at least, by virtue of the 
appointment, and so it does not appear from this case, that the 
gift over would not have been allowed to take effect in the event 
of no appointment. On the contrary, it is clear that the Mas- 
ter of the Rolls regarded the power of disposition as a mere 
power^ which had been well exercised, and the case cannot there- 
fore be taken as an authority to show that she was entitled to 
the property absolutely before she had exercised the power of 

§ 163. In Jackson v. Robins, Chancellor Kent says : We 
may lay it down as an incontrovertible rule, that when an estate 
is given to a person generally, or indefinitely, w^ith a power of 
disposition, it carries a fee ; and the only exception to the rule 
is, where the testator gives the first taker an estate for life only, 
by certain and express words, and annexes to it a power of dis- 
posal. In that particular and special case, the devisee for life 
will not take an estate in fee, notwithstanding the distinct and 
naked gift of a power of disposition of the reversion. " This 
distinction," he adds, " is carefully marked and settled in the 
cases. "2 

§ 164. But the cases cited do not seem to go quite so far; they 
seem to establish only that when a gift is made to one expressly 
for life, with a power of disposing for a particular purpose, or to 
particular persons, or with a power of disposing to any person in 
a particular way, then the donee takes but a life estate with a 
mere power, and not the absolute interest. 

Thus, in Tomlinson v. Dighton, the testator devised to his 

'16 Ves. 135. 216 John?. 588. 


wife for life, and then to be at her disposal, provided it be to 
any of his children, if living ; if not, to any of his kindred that 
his wife shall please. It was held, that the wife took but an 
estate for life, with a power to dispose of the fee. ' 

So, in Crossling v. Crossling, the testator devised to his wife 
for her life, after which followed these words, " and she sha -1 
dispose of the same amongst my children by her at her decease, 
as she shall think proper;" and it was held that she took but a a 
estate for life, with a power to dispose of the fee.^ 

In Reid v Shergold, there was a gift to a niece for life, and 
after her death to such person or persons, and in such propor- 
tions, as she, by her will duly executed, should give and dispose 
thereof. It was held that the niece took but an estate for lif-, 
with a power of disposition. ^ 

The other case cited- by the Chancellor, that of Goodtitle v. 
Otway, we have already stated; and it is very clear that, so fbr 
as it is an authority in point, it is directly against the position 
assumed by the Chancellor. 

§ 165. It is true, however, that, in Tomlinson v. Dighton, 
Parker, C. J., said: And as to this, the difference is, where a 
power is given with a particular description and limitation < i 
the estate, (as here,) and where generally, as to executors to 
sell ; for, in the former case, the estate limited being express anl 
certain, the power is a distinct gift, and comes in by way of ad- 
dition ; but in the latter, the whole is general and indefinite; aid 
as the persons entrusted are to convey a fee, they must conse- 
quently, and by a necessary construction, be supposed to haye 
a fee themselves. And this seems to be as broad as it is luid 
down in Jackson v. Robins. 

§ 166. The distinction is broadly asserted by Robertson, Ch. 

'1 P. Wms. (149.) =2 Cox, (396.) 

310 Yes. 370; see, also, Bradley v. Westcott, 13 Ves. {Uo,^ zuci 
Archibald v. Wright, 9 Sim. 161. 



J., in delivering the opinion of the Court in Caleb v. Field et als.j 
and it is said that a gift for life expressly^ with an unlimited 
power of disposition, passes but an interest for life with a pawer. ' 
But the point was not necessarily involved in the decision of 
the case. 

§ 167. In the case of Keith v. Seymour, the testator gave all 
his personal estate to his wife for life ; and, from and after her 
decease, one moiety thereof was to be at her entire disposal, 
either by will or otherwise ; the other moiety he gave to other 
persons. The Master of the Rolls denied that there was any 
distinction in this respect between real and personal property ; 
and said that by reason of the express estate for life given to 
the widow, she did not take the absolute interest, but had only 
a power of appointment, and held Irwin Vo Farrer to be an au- 
thority for the position.^ 

§ 168. But without pursuing the matter, we may assert, that 
the better opinion is, that a gift to one expressly for a limited 
period, with an absolute power of disposition, does not pass the 
whole property,^ and therefore that a gift over, in default of dis- 
position, is not repugnant to the first gift. 

§ 169. It cannot, however, be admitted that principle requires 
the first gift to be expressly for a limited period ; but it may 
well be contended that principle requires no more than that the 
first gift should be for a limited period, utterly disregarding the 
fact whether it is so expressly or by implication, 

§ ITO. When there is a gift generally, as ''to A," and an 
absolute power of disposition is added, the addition of the power 
is simply nugatory ; for by the general gift the absolute power 
of disposition passed as an incident to the interest, and neither 

•9 Dana, 346. 24 R^g 263. 

^See Pullam v. Byrd, 2 Strob. Eq.; Smith v. Hilliard, 3 Strob. Eq. 214. 


an interest, nor an incident, can exist by virtue of a limitation, 
where it has existence by virtue of law ; and this, because the 
title by law is higher than the title by limitation ; hence the 
maxim, expressio eorum quae tacite insunt nihil operaiur. And 
so it is in other cases, in which the absolute property is held to 
pass. But this does not apply to cases in which the first gift is 
for a limited period, either expressly or by implication. Thus, 
if there be a gift to A, with the power of disposing by will, but 
if A die without making such disposition, then to B, the gift to 
A is clearly but an interest for life, with a power of disposition 
by will. The addition of the power itself furnishes sufficient 
evidence that such was the intention of the donor ; for, expressio 
uniusj exclusio alteriusy and therefore the donor did not intend 
the absolute power of disposition should pass. Besides, a gift 
" to A," and after his death to B, passes by construction but 
a gift for life to A ; and there is no reason for saying that the 
addition of the power shall by implication enlarge the interest, 
whilst on the contrary that enlargement is forbidden by the 
maxim, ut res magis valeat quam pereat. So if the gift be to 
A, with a power of disposition among particular persons, and in 
default of such disposition, then to B, A would take but an interest 
for life with a power of disposition according to the gift. Or, if 
it be to A with a power of disposing by will, except to particu- 
lar persons, and there is a gift over to B in case of non-disposi- 
tion, as prescribed, the gift to A is but an interest for life with 
a power, and the gift over is not therefore repugnant, and for 
this Bull v. Kingston' may be cited as an authority. So, if 
there be a gift for life, with a general power of disposition at 
death, it is but an interest for life, with a power of disposition 
by will.^ 

So, if the gift be "to A," with a power of disposing of the 
property for a particular object, and this is the case of Up well 

'1 Mer. 314. 2 Archibald v. Wright. 9 Sim. 161. 


V. Halsey. In that case the clause in the will was : *'I make my 
wife whole and sole executrix of all my personal estate ; and my 
will is, that such part of my personal estate as she shall leave of her 
subsistence, shall return to my sister." The question was as 
to the validity of the limitation over. Sir Joseph Jekyll, Mas- 
ter of the Rolls, before whom the cause was heard, gave it in 
favor of the sister. He said, that such a sense, if possible, 
ought to be put upon a will, as is agreeable to the intention of 
the party, and consistent with the rules of law. And such a one 
he thought this will was capable of; for he understood it thus : ^'I 
devise the use of my personal estate to my wife, for her life, with 
a power" (the interest not being sufficient for her maintenance) 
'' to dispose of as much of the principal as shall be necessary for 
her subsistence ;" and his sister to have the residue. He 
thought no stress was to be laid on those words, " all my per- 
sonal estate;" for that is no more than what the law implies; for 
when a person is made executor, the law vests all the personal 
estate in him. But then it is not true, that this gift, which by 
construction of law is absolute, may be qualified by the declared 
intention of the testator. Here it is restrained to her for life; 
but with a power, indeed, to dispose of so much of the princi- 
pal as shall be necessary to her subsistence, over and above the 
interest. And accordingly he decreed an account to be taken. ' 

§ 171. The reason, why this doctrine is not applicable to 
cases in which the first taker takes the whole interest expressly, 
is, that construction requires that the gift over shall be held to 
be a conditional limitation, and not a quasi remainder ; and so it 
is if the first gift be general, and the limitation over be in the 
event of non- disposition, for in such case the first taker takes 
the absolute property, and the addition of the power is merely 
nugatory, since it passed as an incident to the property. 

UO Mod. 442; s. c. in 1 P, W. 651 : Larncd v. Bridge, 17 Pick. 339, 


§ 172. The third class of cases consists of those in which two 
ingredients of the preceding classes are found. Thus, in Bourne 
V. Gibbs, there was a bequest of a residue, after payment of 
debts and legacies, " unto my said wife, to and for her own use 
and benefit ; and to be at her own absolute disposal, and free 
from any control whatsoever; provided, nevertheless, that if my 
said wife shall make no disposition thereof either by expenditure, 
sale, transfer, assignment, gift, or otherwise, in her life-time, 
or by her last will and testament, then I direct that " the said 
residue, or such part thereof as shall remain undisposed of as 
aforesaid, shall immediately after my said wife's decease, go to, 
and I accordingly give and bequeath the same unto my said 
two nephews, Peter John Saunders and Thomas Saunders, and 
my said niece, Ann Gibbs, equally to be divided between them, 
share and share alike, and their several and respective execu- 
tors, administrators and assigns." 

Mr. Pemberton, who argued in favor of the limitation over, 
said he did not deny that the widow had the power to make her- 
self the absolute owner. She did not dispose of it by her will 
or otherwise. The only question was, whether the widow had 
assumed to herself the right of ownership. There was nothing 
in this case to show that she had so done, and consequently the 
bequest over was good. But the Master of the Rolls held the 
gift to the widow to be absolute ; ' and the gift over was there- 
fore repugnant and void. 

So, in Jackson v. Robins, a case very elaborately argued, the 
question arose upon this clause in the will, "I give, devise and 
bequeath all my real and personal estate whatever unto my dear 
wife Sarah, to hold the same to her, her executors, administra- 
tors, and assigns; but in case of her death without giving, devis- 
ing, or bequeathing by will, or otherwise selling or assigning the 
said estate or any part thereof, then I do give, devise, and be- 

H Tamyin, 414. 


queath all such estate, or all parts thereof as shall so remain 
unsold, undevised, or unbequeathed, unto my daughter, Lady 
Catherine Duer." The Court held the limitation over to be 
repugnant and void. ' 

§ 173. But are we not carefully to distinguish this class of 
cases also from those in which the first gift is, either expressly 
or by implication, but for a limited period 1 Thus, if there be 
a gift to A for life, with a power of disposition, and after his 
death the whole or so much as shall remain undisposed of to B, 
it seems that the limitation over is good. So, if there be a gift 
to A with a power of disposing of it by deed, and after his death 
the whole or so much as shall remain undisposed of to B, the 
gift over seems to be good. So, if the gift be to A with a power 
of disposing of it to particular persons, or for a particular pur- 
pose, with a gift over to B at the death of A of the whole, or so 
much as shall remain undisposed of, the gift over seems to be 
good. So, if the gift be to A with an absolute power of dispo- 
sal, and after his death, the whole, or so much as shall remain 
undisposed of to B, the gift to A seems by construction to be a 
gift for life with a power, and the gift over seems therefore to 
be good. 

§ 1*74. We are carefully to^. distinguish from the cases which 
fall within the principle of repugnancy, those cases in which a 
trust is created. For, when a person bequeaths property to 
another, absolutely or for a limited period, accompanied with 
words expressive of recommendation, request, hope, or expecta- 
tion, that the legatee will dispose of the gift as his own, to or 
among one or more objects, the Court of Chancery will construe 
such a recommendation or request as a trust ; provided the words 
be imperative, and the objects and the property certain.^ But, 

M6 John. 5375 15 ib. 169. 

22 Hop, on Leg. 297 3 2 Story's Eq. § 1068, et seq. 



without going into the numerous cases which are to be found up- 
on this subject, we may content ourselves with the case of Coates' 
Appeal. In that case, the testator declared : "It is my will and 
desire that all my just debts and funeral expenses be fully paid 
and discharged. Then I will and bequeath unto my dear wife, 
Martha Pennock, the use, benefit, and profits of all my real 
estate during her natural life, and also all my personal estate of 
every description, including ground rents, bank stock, bonds, 
notes, book debts, goods and chattels, absolutely, having full 
confidence that she will leave the surplus to be divided, at 
her decease, justly amongst my children." In other items, he 
bequeathed unto his four unmarried daughters the sum of $50, 
to be paid to each of them yearly, during the life-time of the 
wife ; in case, however, of the marriage of his said daughters, 
the allowance of such to cease. These payments were to be 
made out of his personal estate. The court construed the word 
^'surplus," therefore, to mean the residue of his personal pro- 
perty after the debts, funeral expenses and legacies were paid, 
and held that the widow took but a life estate in that property 
for her own use ; and that she was trustee for the children, sub- 
ject to her life interest. ^ 

§ 175. Repugnancy may also exist between a general intent 
and a particular intent. When such appears to be the case, it 
is the duty of the Court to put such construction upon the in- 
strument as will give effect to every part of it, but if the two 
intents be in fact so repugnant that construction cannot reconcile 
them, then the general intent must be allowed to prevail. And 
this is the cypres doctrine of construction. 

§ 176. An illustration of the apparent repugnancy between 
two intents which were yet reconciled by construction, is found 
in the case of Stallsworth et al. v. Stallsworth, ex'r. In that 

»2Barr, 129. 


case the testator bequeathed slaves to his children, and after- 
wards directed a tract of land to be set apart for the use of his 
wife and the minor children, together with horses, stock, &c., 
for their exclusive use, until the youngest child, who may then 
be living, arrives at the age of twenty- one, and then that the 
real estate be sold and equally divided between the vrife and 
such of the minors as might then be alive; and it was held, that 
there was no incongruity between these clauses of the will, but 
that both could stand together — that the intention of the testa- 
tor was, that the minor heirs were entitled to their legacies as 
soon as distribution could be made, and had the right to work 
their slaves on the land set apart, in concert with their mother.' 
The general intent contended for, was that the executor was to 
retain the property until the majority of the youngest child, the 
particular intent that the slaves bequeathed were to be distri- 
buted as in ordinary cases. 

§ ITT. Illustration of repugnancy in fact between a general 
and particular intent, is furnished by those cases in which an 
express estate for life is given, and in default of issue, over ; for 
the particular intent to give but a life estate, gives way to the 
general intent that the issue shall take, and so gives the first 
taker an estate tail in real, and an absolute estate in personal 

§ 178. We come now to the subject of remoteness. The rule 
is, that every future interest in chattels personal must be so 
limited, that, from the first moment of its creation, it may be 
said, it will necessarily vest in right, if at all, within the period 
occupied by the life of a person in being, that is already born, 
or in ventre matris, or the lives of any number of persons de- 
scribed and in being, not exceeding that to which testimony can 

'5 Ala. 143. 

2See Robinson v, Robinson, 1 Burr. 38; Chandless v. Price, 3 Ves.. 
99; Brouncker v. Bagot, 1 Mer. 271. 


be applied to determine when the survivor of them drops, and 
bj the infancy of any child born previously to the decease of 
such person or persons^ or the gestation and infancy of any child 
i?i ventre matris at that time ; or within the period occupied by 
the life or lives of such person or persons in being, and an abso- 
lute term of twenty-one years afterwards, and no more, without 
reference to the infancy of any person; or within the period of an 
absolute term of twenty-one years, without reference to any life. ^ 

§ 119. No exception to the rule is known in its application to 
chattels personal, for neither remainders strictly so called, nor 
entails can be created in that species of property. 

§ 180. The rule seems to be a plain one, and yet there some- 
times arises a difficulty in determining when the future interest 
is to take effect. The cases in which this question most fre- 
quently arises, are: 1. Those in which the interest is limited to 
take effect upon a failure of issue. 2. Those in which the gift 
is to a class comprising individuals who may not come into exis- 
tence at all within the period prescribed by the rule, or persons 
who may not be in esse at the death of the testator, and the 
vesting of whose shares is postponed beyond majority. 

§ 181. In regard to the first class, it is said, that the words, 
^'die without issue," "in default of issue," "on failure of is- 
sue," "for want of issue," "if he have no issue," and "if he 
die before he has any issue," import of themselves an indefinite 
failure of issue, ^ and that a gift of chattels so limited to take 
effect, is void for remoteness; because it cannot be said that an 
indefinite failure of issue will necessarily happen within the time 
prescribed by the rule. 

§ 182. There is one exception to this rule of construction, and 
that is, where a donor, having no issue, makes a gift to take 

'See 2 Fearne's Rem., § 706. 22 Fearne's Rem., § 538. 


eflfect upon his dying " -without issue," or &c.; in which case the 
words are construed to refer to the time of his own death. ^ 

§ 183. The general rule itself will yield to an intention in 
the context, to use the words in the restricted sense of issue liv- 
ing at the death. The courts, indeed, have " been rather astute 
and anxious to catch at any circumstances appearing on the will 
itself which may restrict the failure of issue to the period of the 
death of the first taker. The leaning is against the indefinite 
construction, in gifts of personal property, but it is in favor of it 
in gifts of real property ; and this Lord Brougham laid down 
as an undeniable proposition, to be collected from the very nu- 
merous cases on the subject.^ A distinction was once attempted^ 
between chattels real and personal, in regard to remoteness, but 
it was rejected.* 

§ 184. We have said that the general rule itself will yield to 
an intention in the context to use the words in a restricted, in- 
stead of an indefinite sense. Now there are four classes of 
cases in which it is held that such an intention appears in the 

§ 185. The first class consists of those cases in which the 
failure of issue is combined with an event personal to the indi- 
vidual; as dying without issue and unmarried. (a) Mr, Jarman 
thinks this construction would prevail in case of real property, 
and he seems justified in that opinion by the cases which he 
cites. ^ If the construction would prevail in case of real pro- 
perty, a fortiori would it prevail in case of chattels personal. 

^2 Jar. on Wills. (421 .) aCampbell v. Harding, 2 Rus. & My. 390. 

^Hughes V. Sayer, 1 P. Wms. 534. By M. R., in Forth v. Chapman, 
1 P. Wms. 665; Pleydell v. Pleydell, ib. 748. 

^Beauclerk v. Dormer, 2 Atk. 314: Attorney Gen'l v. Bayley, 2 Bro. 
Ch. 558. 52 Jar. on Wills, (428-9.) 

(a) Doe d.King v. Frost, 3 Barn. & Aid. 546— (gift over, charged with 
money to be disposed of by prior donee) — seems to belong to this class. 


§ 186. The second class consists of cases in which words, ox- 
phrases, are furnished by the context, which of themselves re- 
strict the failure of issue within the time prescribed. 

To this class belongs Nichols v. Hooper, ^ where the gift was to 
B for life, remainder to C and his heirs; but if C should die with- 
out issue of his body, then 100/. apiece to two nieces, to be paid 
within six months after the death of the survivor of B and C. 

To this class belongs Target v. Gaunt, ^ where the gift was 
to A for life, and no longer, and after his decease, to such of his 
issue as he should by will appoint; and in case he should die 
without issue, remainder over. 

To this class belong Hughes v. Sayer, ^ and Nicholls v. Skin- 
ner,* "which are substantially the same," where the gift was, 
" if A or B die without issue, then to the survivor.^^ In Camp- 
bell V. Harding,^ these cases are said to be cases "where the 
circumstance that the legatee over was to be one of the indi- 
viduals for whose lives the whole had been previously limited, 
was considered restrictive and inconsistent with the notion of a 
perpetuity." Whether the remark be true or not, it is certainly 
true that cases like Hughes and Sayer are supported by more 
general reasoning, viz : that it appears that a personal benefit is 
intended when the gift over is to a survivor, without adding, 
" executors, administrators and assigns," or the like, and there- 
fore the donor could not have contemplated an indefinite failure 
of issue. Thus, in Stevens et als. v. Patterson, the testator 
bequeathed a slave to his daughter, " to her and the heirs of her 
body, but should she die without lawful issue, then to go back 
and be equally divided amongst the survivors of my children 
aforementioned," and it was held that the limitation over was 
not too remote. ^ 

In Massey v. Hudson, there was a devise of an estate charged 

M P. Wms. 198. nd. 432. H^. 534. ^Prec. Ch. 528. 

^2 Rus. & My. 390. M Bailey's Eq. 42. 


with two several legacies to A and B, and " in case A or B shall 
die without lawful issue, then the whole of the said two legacies 
to go to the survivor, his or her executors, administrators, or 
assigns." The Master of the Rolls said : I think the bequest 
over in this case- is too remote. A bequest to C after the death 
of B, does not import that A must himself live to receive the 
legacy. The interest vests at the death of the testator, and is 
transmissible to representatives, who will take whenever the event 
of B's death may happen. So, if the bequest be to A, in case 
B shall die without issue. If that were allowed to be a good 
bequest, A's representatives would be entitled to take at what- 
ever time the issue might fail. It is for that reason that it is 
held too remote. But if A is personally to take the legacy, 
then the presumption is strong that an indefinite failure of is- 
sue could not be in the testator's contemplation. 

Prima facie a bequest over to the survivor of two persons, 
after the death of one without issue, furnishes this presumption; 
for it will be intended that the survivor was meant individually 
and personally to enjoy the legacy, and not merely to take a 
vested interest, which might or might not be accompanied by 
actual possession. For, if the survivorship be necessary only to 
vest the interest, and to render it transmissible, the objection of 
remoteness is not at all obviated, and the restrictive presump- 
tion does not arise. Now the addition of the words, " execu- 
tors, administrators, or assigns," excludes the presumption that 
it was a mere personal benefit that was intended for the survi- 
vor. For, though there should be no such failure of issue as 
would enable him personally to take, yet his representatives 
would be entitled to claim in his right whensoever the failure of 
issue should happen. ^ 

*2 Mer. (100;) see, also, Ranelagh v. Ranelagh, 2 My. & Keene, 441; De 
Treville v. Ellis, 1 Bailey's Eq. 40. The opinion, as to this point, in 
Tiinberlake et ux. v. Graves, 6 Munf. 174, seems to be erroneous. 


To this second class belongs, also, McGraw v. Davenport & 
Wife. ^ In that case the gift was of seven negroes to A during 
her life, and at her death to be equally divided by valuation be- 
tween his two daughters, " or should either of them die without 
issue," the other was to take the seven negroes, and their in- 
crease, and it was held that the dying without issue was con- 
fined to the death of A, 

So in Keating & Wife v. Reynolds,^ where there was a gift 
of chattels to A and B severally, and to the heirs of their bodies; 
but if either of them "should die without having a lawful heir 
to live," then over, it was held that the dying without issue was 
restricted to the death. 

Pinbury v. Elkin^ belongs also to this class. There the be- 
quest was to A, and if she died without issue, then after her de- 
cease 80^. to remain to the testator's brother, and it was held 
that the gift of the 80/. was not too remote. This case is re- 
cognised in Paine v. Stratton,* and by the Lord Chancellor, in 
Campbell v. Harding. ^ It is true that, in Thubridge v. Kil- 
burne,^ Lord Hard wicke said, the words "immediately from 
and after the decease," were too precarious a foundation for the 
restricted construction ; but, as said in Campbell v. Harding, 
this remark of Lord Hardwicke's is at variance with Pinbury v. 
Elkin,((2) and is moreover but a dictum. 

To this second class belong those cases in which the word 
" leaving^ ^ is inserted before issue. 

§ 187. And here we may notice that a distinction is taken 
between " dying without leaving issue," when used in reference 
to real and to personal property, even when both species of pro- 

'6 Por. 329. M Bay. 78. ^1 P. Wms. 563. 

*2 Atk. 647; 3 Bro. P. C. 329, 2 Rus. & My. 390. 

62 Ve?., sr. 233. 

(a) Hopkins v. Jones, 2 Barr, 69, is said to be coupled with Pinbury 
V. Elkiiijbut it seems contrary to authority — see 1 P. Wms. 200, N. (1.) 


perty are included in the same gift. Forth v. Chapman' is the 
leading case, and though it has been doubted and denied, yet 
the weight of authority is in favor of it at the present day.^ In 
relation to real property, they are held to import an indefinite 
failure of issue, whilst in relation to personal property, they are 
held to import a failure of issue living at the death of the first 
taker. But the distinction must be regarded as a nice one, since 
the case of Porter v. Bradley^ is considered as resting upon 
words "behind him," which were added to "leaving no issue."* 
In some of the American Courts it has been said that, inasmuch 
as no estates tail exist, real property must be put upon the same 
construction in this respect with personal property.^ But this 
may be doubted, since the reason of the distinction is, that the 
courts catch at every thing to relieve themselves from the legal 
CjOnstruction of indefinite failure of issue, when applied to per- 
sonalty, and this in order to support the limitation over ; whilst 
in regard to realty, the construction of indefinite failure of is- 
sue is favored, because the interest of the heir is concerned, and 
him the common law will not allow to be deprived of his inheri- 
tance, except by plain intention. 

§ 188. The distinction, then, seems to be nothing more than 
an exception, in favor of personalty, from the general rule which 
governs realty. If this be so, then the abolition of estates tail 
cannot relieve the courts from maintaining the distinction in full 

§ 189. The third class of cases, in which the indefinite im- 

u P. Wms. 663. 

2Doe d. Cadogan v. Ewart, 7 Adol. & El. 636 ; 2 Jar. on Wills, (419); 
Campbell v. Harding, 2 Rus. & My. 390 ; Mazyck et ah. v. Vanderhost 
.& Wife, 1 Bailey, Eq. 48 ; Booker et ah. v. Booker et ah., 5 Hump. 505. 

^3 Diirn. & East. 143. ^7 Adol. & El. 636 ;. 2 Jar. on Wills, (433.) 

^Dargan, C. J., inFliun v. Davis ei a/., 18 Ala. 145; Jones v. Spaight- 
1 N. C. L. R. 544. 


port of the failure of issue is restricted, consists of those in which 
the subject of the gift necessarily precludes the idea that any 
other than a restricted failure was in the contemplation of the 
donor. Thus, "if an estate held for the life of A and B, be 
devised to C for hfe, and if he shall die without issue, then over 
to D, it is perfectly clear that the limitation over must vest in 
D, according to the strict rule, within the compass of lives in 

§ 190. The fourth class consists of those cases in which *^ a 
restriction is raised from the nature of the estate given by the 
limitation over ; as when, for example, the interest given over is 
an estate for life, or lives, that circumstance imports such a re- 
striction, and raises a presumption in favor of the words mean- 
ing issue living at the time of the death, which thus prevents 
the perpetuity." " I state this proposition," adds the Lord 
Chancellor, " with diffidence, because it appears to be somewhat 
at variance with the doctrine laid down by Sir W. Grantj in 
Barlow v. Salter, 17 Ves. 479, although the case with which he 
was there dealing was that of a gift to survivors absolutely, and 
not merely of life estates, and in that respect differed from the 
class I am now considering." * * # # The cases at law, 
however, leave no doubt that the character of the devise over, 
as being an estate for life only, has been imported into the con- 
sideration of the question of construction." 


§ 191. The case of Keily v. Fowler^ is said to be sui generis 
— a case in which the Court "laid hold of all the circumstances, 
but most particularly the circumstance of its being a personal 
trust, the duties imposed on the executors strongly implying a 
delectus per sonarum: the very peculiar form of the direction, that 
the property should return back to the executors, in order to be 

^Campbell v. Harding, 2 Rus. & My. 390. ^j^l 

3 3 Bro. P. C. 299. 


divided, and the nature of the chattels to be given to the daugh- 
ter, viz : twenty cows and one horse, in the event of the limita- 
tion over taking effect, were also material features in the case ; 
and from all these circumstances and expressions taken together, 
the Court considered itself justified in holding that the failure 
of issue must be intended to be confined to the period of the life 
of the first taker." ^ 

§ 192. It makes no difference in this matter whether the first 
gift be expressly for life, or of a larger interest ; for, in either 
case, the failure of issue is construed to be a failure of issue at 
any period of time; the first estate is enlarged by implication in- 
to an absolute interest, and the limitation over is void for re- 
moteness. And this is so laid down in Lepine v. Ferard.^ 

§ 192. It is also to be observed, that it makes no difference 
in regard to the application of the rule under consideration, 
whether the first gift be of the principal, or merely of the inte- 
rest.^ So is Butterfield v. Butterfield;^ and so, doubtless, are 
all the cases. 

§§ 194-9.5. Another point worthy of notice here, is, that a 
court, in ascertaining whether the gift over be upon an indefinite 
or restricted failure of issue, will not search through the whole 
instrument for a general intention, but will confine itself to the 
terms of the gift. " I will not," said the Lord Chancellor, in 
Campbell v. Harding, " be stopped by a colon or a period; if the 
next succeeding sentence is manifestly a substantial part of the 
bequest, I shall treat it like an act of parliament, which has no 
stops, and read it as a part of the bequest ; but I will not go 
iiito another branch of the will for the purpose of showing a gen- 
eral intention. Of what use is it to look at intention in these 
cases ? Did any man ever make a will in which he wished that 
a-n executory devise should fail?" 

'Campbell v. Harding, 2 Rus. & My. 390. ^1 Rus. & My. 378 

Md. M Ves.. sr. 153. 


^ 196. The Code of this State provides that, " When a re- 
mainder in real or personal property is limited to take effect on 
the death of any person without heirs, or heir of his bodj^, or 
without issue, the word " heirs," or ^4ssue," must be construed 
to mean heirs or issue living at the death of the person named 
as ancestor."^ 

^ 197, A dying without heirs, or heir,(a) or heirs of the body, 
is construed by the common law, like a dying without issue, to 
be too remote an event upon which to suspend a limitation. The 
Statute provides, therefore, for those cases also. But there are 
cases which do not seem to be included in the Statute. Thus, 
if the limitation be to A, and if he shall die without descendants, 
then to B, the limitation to B depends upon an indefinite failure 
of issue. So, if there be a devise of real property to B, a stran- 
ger, if A, a stranger, die without issue, and there is no express 
devise to A, or his issue, or his heirs, the devise to B is an exe- 
cutory devise to take effect upon an indefinite failure of issue. 
The case does not seem to be met by the Statute, because, as 
there is no prior interest created, either expressly or by impli- 
cation, the limitation to B cannot be a remainder even in the 
lax sense of any subsequent interest. A like case might, of 
course, arise in limitations of personal property, and the Statute 
could not aid the court in escaping from the construction of re- 
moteness, unless it could be held that " remainder" means any 
future interest, and that would be a very strong definition. 

§ 198. Notwithstanding it is everywhere said that a limitation 
over to take effect upon an indefinite failure of issue of a person 

^Code, § 1302. There is a similar Statute in England, 7 VV. 4, and 1 
Vict., but more generally worded— see Doe v. Ewart, 7 Adol. & El. 636. 

{a) Moon et ah. v. Herndon et als., 4 Dessaus. 459, cited 3 Strobh. 
Eq. 222, holding that "if either of my said children should die without 
an heir," meant "if either of my said children should die without a 
child,'' and that a limitation over was therefore not too remote, 


who takes the absolute property, is void, because it is in viola^ 
tion of the rule against perpetuity, yet another reason, as po- 
tent in such case, is that a limitation over of personal pro- 
perty cannot be made to take effect ofter the expiration of 
an absolute interest — whether absolute, expressly, or by im- 

§ 199. The other class of cases previously mentioned as one 
of those in which the question of remoteness most frequently 
arises, is composed of those in which the limitations are to a 
class of persons, who may not come in esse within the time pre- 
scribed by the rule, or who may not be in esse at the death of 
the testator, and the vesting of whose shares is postponed be- 
yond majority. In the former case, says Mr. Jarman, the rule 
is fatally violated, even though the gift to the unborn objects is 
so framed as to confer on them vested interests immediately on 
their birth. A strong illustration of the other case is furnished 
by Dodd v. Wake, where the bequest was as follows : " I give 
and bequeath the legacy or sum of 30,000/. of lawful English 
money, unto and amongst the children of my daughter, Mary 
Maria, the wife of George Anthony Wake, who shall be liv- 
ing at the time the oldest shall live to attain the age of twenty- 
four years, and the issue of such of the children of my said 
daughter as may then happen to be dead, leaving issue, to be 
equally divided between or among them, share and share alike, 
per stirpes, and not per capita, as tenants in common, and to be 
paid and payable unto them respectively, when and as they shall 
respectively attain the age of twenty-four years, but without 
any interest in the meantime. '' The daughter of Mrs. Wake 
had three children, who at the testator's death were of the re- 
spective ages of thirteen, twelve, and nine years. The Vice- 
Chancellor said : The testator appears clearly to have intended 
that only those children of his daughter should take, who should 
^be alive when the eldest child, for the time being, should attain 


the age of twenty-four ; and therefore the bequest is void for 
remoteness, ' 

§ 200. When a gift is to a class, it matters not that some or 
even all of the class actually come in esse within the time pre- 
scribed by the rule, still the gift is invalid, for by the terms of 
"the rule the gift must necessarily vest, if at all, within the time 

In Leake v. Robinson there was a gift in trust for William 
Rowe Robinson for life, and after his death for the maintenance, 
education and advancement of all and every the child and chil- 
dren, if any, of the said W. R, R , until (being sons) they 
should attain twenty-five ; or (being daughters) until they should 
attain such age, or marrj'^ with the consent of parents or guar- 
dians ; and then to pay all the trust fund " to such child or chil- 
dren, being a son or sons, who shall attain such age or ages of 
twenty-five as aforesaid, and to such child or children, being a 
daughter or daughters, who shall attain such age or ages, or be 
married as aforesaid, his, her, or their heirs, executors or ad- 
ministrators ; if only one such child, or having been more, if all 
but one should die before their shares should become payable as 
aforesaid, then the whole to such only, or surviving child." And 
in case of the death of W. R. R, without leaving issue, or leav- 
ing issue, such issue should not live until the time prescribed, 
then unto and among all and every the brothers and sisters of 
the said W^. R. R., share and share alike; if brothers, at twenty- 
five; if sisters, at twenty-five, or marriage as aforesaid. W. R. 
R. had two brothers born after testator's deatb, and he attained 
twenty-five and died without leaving issue, and after his death 
a sister was born. Sir William Grant said : The bequests in 
question are not made to individuals, but to classes ; and what I 
have to determine is, whether the class can take. I must make a 

»8 Sim. 615. 


new will for the testator, if I split into portions his general be- 
quest to the class, and say that, because the rule of law forbids 
his intention from operating in favor of the whole class, I will 
make his bequests what he never intended them to be, viz : a 
series of particular legacies to particular individuals, or what 
he had as little in his contemplation, distinct bequests in each in- 
stance to two different classes, namely, to grandchildren living 
at his death, and to grandchildren born after his death. ^ 

§ 201. But note, in Kevern v. Williams the testator be- 
queathed his residuary estate to trustees, in trust for his wife 
for life, and after her decease, " to preserve the then remaining 
part of my estate for the grandchildren of my brother C, to be 
by them received in equal proportions when they shall severally 
attain the age of twenty-five years ; and when the youngest shall 
have attained the age of twenty-five years, and he or she shall 
have received their final dividend, or share of my estate, the 
trust shall cease." The testator left his widow surviving — eight 
grandchildren of the brother were in existence at the widow's 
death, and several were born afterwards. The Vice- Chancellor 
said that, in Leake v. Robinson, no distinction was made be- 
tween the time of gift and the time of enjoyment : that in this 
case, those only of the grandchildren were entitled to take, who 
were in esse at the death of the tenant for life. ^ 

§ 202. Two points are to be remembered here : 1. That thd 
postponement of the enjoyment alone, either partially or wholly, 
does not invalidate a gift, but it is itself nugatory, whenever the 
gift is vested : 2. That a gift to a class may, by construction, 
be held to be to such number of the class as are in esse before a 
particular time, and the rule against remoteness be thus avoided. 

Now, in Knight v. Wall, Gaston, J., in delivering the opin- 
ion of the Court, said : Where a legacy is given to a described 

»2 Mer. 363. ^^ Sim. 178. 


class of individuals, as to the children of A B, and no period is 
appointed for the distribution of it, as the legacy is due at the 
death of the testator, and the two years allowed (by statute) to 
the executor for settling the estate, are given but for the conve- 
nience of the estate; the rights of the legatees are settled and 
determined at the death of the testator. Unless, therefore, 
something else appears in the will to indicate a different intent, 
the persons answering the description at his death, that is to 
say, the children of A B then in existence, or legally consid- 
ered as then in existence, are alone entitled to the bequest. 
When the enjoyment of the thing given is not to be immediate, 
but is postponed to a particular period, as at the death of A B, 
and there are no special provisions in the will indicating a differ- 
ent intent, then not only those who answer the description at the 
death of the testator, but those w^ho come into being after his 
death, and before the time when the enjoyment is to take effect, 
so as to answer the description at any time before that assigned 
for the distribution, are all entitled to take. In the latter case 
all are embraced, because no inconvenience can result from ta- 
king them in, and each one of the family of children is supposed 
to have been comprehended by the testator within such general 
words. ^ "But," as said in M'Meekin v. Brummet, "all the 
authorities, without exception, apply to the case of a willj and 
no such principle has ever been applied to a deed or gift inter 
vivos. A deed or gift inter vivos, speaks at the time of its ex- 
ecution, and the grantee or beneficiary under it, must be such 
as answers the description at that time. " I do not mean to 
say," added the Chancellor, " that a contingent future interest 
may not be given by deed to a person not in existence, but that 
intention must appear in the instrument, (or in the gift inter vi- 
vos;) and if there be a person to answer the description at the 
time, it will never be applied to another coming afterwards into 

«2 Dev. &Bat. 129-30. 


existence, "who may come within the terms of the description. ' 
Notwithstanding this case, however, we can hut believe, when a 
future interest is created in chattels personal^ by deed of trust, 
or by parol trust, whether it be a springing interest, a quasi re- 
mainder, or a conditional limitation, that the same construction 
should prevail, as prevails in case of wills. Nor can we believe, 
that when a quasi remainder or conditional limitation is created 
by deed directly, and the gift over is to a class, that the con- 
struction should be different from a like case upon a will. 

§ 203. Every limitation of personal property that is ulterior 
to a limitation that is void for remoteness, is also void ; unless it 
is to arise upon another event, which must necessarily happen 
within the time prescribed by the rule. The exception is but 
the rule, that when a limitation is made to depend upon either 
of several events, that the illegality of one or more of the events 
will vitiate the limitation pro tanto only. Thus, if there be a 
bequest to A, and if he die without issue living at his death, or 
leaving such issue, they should die under the age of twenty-three 
years, then to B, the limitation to B is good in the first event, 
but it is too remote in the other. 

§ 204. "In case of appointments testamentary or otherwise, 
under powers of selection or distribution in favor of defined 
classes of objects, the appointees must be persons competent to 
have taken directly under the deed or will creating the power. 
The test, therefore, by which the validity of every such gift 
must be tried, is to read it as inserted in the deed or will cre- 
ating the power. 2 If the power be to issue generally, and the 
appointment be within the rule, it is good ; and if the power re- 
strict the appointment to objects within the rule, but if the ap- 
pointment be made to a dassj some of whom are not within the 
power or the rule, the appointment will be good pro tanto.^^^ 

'2 Hill's Ch. Rep. 639. 21 jar. on Wills. (243.) ^Ib. (250.) 


§ 205x But without going farther into this matter, we may, 
in conclusion, add, that trusts for accumulation are subject, 
when not governed by statute, ^ to the rule against perpetuities. 

§ 206. But the rule against remoteness, we have said, is di- 
rected against future contingent interests, and not against future 
vested interests. It is necessary, therefore, that we inquire 
when a future interest is held to be vested, and when it is held 
to be contingent. 

§ 207. It is a general rule, that interests shall be construed 
to be vested, rather than contingent. Or, to state the rule, as Mr. 
Smith says, more precisely, " in doubtful cases, an interest shall, 
if it possibly can consistently with other rules of law, be con- 
strued to be vested in the first instance, rather than contingent; 
but, if it cannot be construed as vested in the first instance, that 
at least, it should be construed to become vested as early as pos- 
sible. "^ This rule, however, as was said in Richardson e^ als. v. 
Wheatland,^ is not to be so pressed as to defeat the intention 
of the instrument, 

§ 208. It may be laid down as a general rule, that where a 
donee is in esse, and ascertained at the time the instrument takes 
effect, and the gift is not dependent upon a condition precedent, 
then though the enjoyment is postponed to a future time, yet is 
the gift of a vested, and not of a contingent interest. 

§ 209, In regard to the position, " where a donee is in esse^^^ 
it may be said that it matters not, whether the donee be born, 
or be still in ventre sa mere; for in the latter case the donee is 
in esse, for the purposes of a gift, from the moment of concep- 
tion ; provided such donee be afterwards born alive, and after 

»See Code (Ala.) for statutory rule. ^2 Fearne's Rem., § 201. 

37MetCDlf, 171. 


such period of foetal existence, that continuance of life may rea- 
sonably be expected.* 

§ 210. In regard to the donee being ascertained, the rule, of 
course, is that the donee must answer the description according 
to the intention of the donor, A strong case here is that of 
Trower v. Butts, in which it was held, that under a gift to chil- 
dren " born in my life-time," a child in esse^ but unborn at the 
testator's death, was held to be entitled to a share. ^ The Vice- 
Chancellor said : It is now fully settled, that a child m ventre 
sa mere is within the intention of a gift to children living at the 
death of a testator ; not because such a child (and especially in 
the early stages of conception) can strictly be considered as an- 
swering the description of a child living ; but because the poten- 
tial existence of such a child places it plainly within the reason 
and motive of the gift. ^ This accords with the maxim of the 
civil law, '' posthumus pro nato habeturJ^ 

§211. We come now to consider the condition precedent. — 
The great rule is, that if the donor, either expressly or by clear 
implication, has pointed out a particular time wdien the gift 
shall become a vested interest, then the arrival of that time is a 
condition precedent. But we must distinguish between the time 
of vesting in enjoyment and vesting an interest^ for they are 
very different matters. Thus, if there be a gift of money or of 
other chattel personal to A, " payable, or to be paid, or to be 

^2 Bouvier's Institutes, 353. 

2 1 Sim. & M. 99; 2 Paige, 35— cited Chiltoirs Probate Court, Law & 
Practice, 423, N. — where it is also said : " Children born within six 
months after conception are presumed to be incapable of living, and 
therefore cannol take or transmit property, unless they actually sur- 
vive long enough to rebut the presumption." — 2 Paige, 35. And: "A 
child born within eight months and twenty-one days, after the death 
of his sister — held entitled to distributive share of her estate." — 4 Sim. 
&M. 99. 31 gini. & Stu. 181. 


delivered," at his age of twentj-one or other definite time, A 
takes a vested interest, for the time is annexed to the enjoyment 
and not to the gift. So if the gift be to take effect in enjoyment 
after payment of the testator's debts, the interest is vested, un- 
less a different intention appear. 

§212. But if the money or chattel is to be paid or delivered 
upon an event which must not necessarily happen, as upon mar- 
riage, or birth of a child, then the interest is contingent, unless 
it appear that the donor intended the event to be a condition 
subsequent and not precedent. Let us take three cases by way 
of illustration. 

In Monkhouse v. Holme, the testator gave the use of 800^. to 
his wife for life, and from and after her decease, disposed of the 
said 800/. in the following manner: to L. B. lOOL, to M. M. 
100/., to E. and C, H. 100/. each, to M. H. 5/. a year. Then 
followed other devises and bequests. He then declared : I also 
give to Jonathan Monkhouse, son of my brother George, the 
sum of 100/. He then gave the residue to his wife. The tes- 
tator died, and then Jonathan, and then the widow. After the 
death of the widow, the representative of Jonathan claimed the 
100/. It was contended that it was part of the 800/., and 
therefore lapsed by the death of Jonathan in the lifetime of the 
widow. But Lord Loughborough held that it was vested. He 
said : The 800/. is a gift to the trustees, to pay the interest to 
the wife for life, and then in parts and shares. That, shows his 
intent to be to give a vested interest to the several legatees. 
But this is said to be contrary to the rule of not vesting legacies 
given by words de futuro. I rather take the rule to be, that 
when the time is annexed, not to the form, but to the substance 
of the gift,^ then it lapses by the death of the legatee. There 
are instances both ways, in Dyer 59 b, on the will of Lord Lat- 

^See Marr's Ex'rs v. McCoUough, 6 Porter, 507. 


imer. The rule in legatory cases is taken from the civil law. 
* * * If the d'aj is certain, it is vested ; but where uncer- 
tain, the true question will be, " whether it is in the nature of 
a condition," for if it is conditional, then, in the very nature of 
the thing, the time is annexed to the substance of the gift, as in 
the case of marriage, of puberty, or of any other situation in 
life, when the arrival of the time is a condition, without which 
the testator would not have made the gift. * * The circum- 
stance of introducing a legatory subject by the word " after," 
cannot be construed so to aifect the gift as to make it a condi- 
tion. The solid substantial distinction is, whether the testator 
meant it as a condition.^ 

In Morgan v. Morgan, a testatrix directed her executors to 
pay to A 5000^. upon her marriage, with all the accumulations 
of interest thereon from the time of her death ; and it Avas held 
that the marriage of A was a condition precedent to the vesting 
of the legacy. ^ 

In Ridgway v. Ridgway, a testator bequeathed his residuary 
4)ersonal estate to trustees, upon trust for A for life, and after 
the death of A, the said trust money and income in trust for all 
and every the children of A, share and share alike, to the son 
or sons when they should have attained the age of twenty-one, 
and for the daughter or daughters at that age or marriage ; with 
a gift over of the said trust money and the interest, dividends, 
and annual produce thereof, if A should die without having a 
child or children, or having any, such children should die, be- 
ing sons before twenty-one, or being daughters before that age 
or marriage. The legatee had one child, a daughter, who sur- 
vived and died at the age of sixteen, and without having been 
married. It was held that the trust-property had vested in the 
daughter, so that the income between the death of A and the-^ 
death of the daughter belonged to the estate of the daughter. ^ 

■II Bro.Ch.Rep. (298.) 22 Eng. L. & E. Rep. 35. ^4 lb. 108. 



§ 213. It is a question of intention in each case, •whether the 
future gift is dependent or not upon a condition precedent, and 
therefore it is a question of fact rather than of principle. 

§ 214. But the cases are useful as showing the construction 
which has been given, and which the courts will therefore in like 
cases give again, for stare decisis is a maxim which applies with 
as much force to construction as to principle. 

In Benjon v. Maddison, the testator gave the whole of his 
estate, subject to his debts, to John Maddison, the defendant, 
" in order to pay the income to my mother, Hester Lynde, for 
life, my intent being that she should enjoy the same during her 
life ; but, after the death of Mrs. Hester Lynde, I then give 
to (five persons) the sum of 500/. each, three per cent, annuities, 
and to J. Benyon, and Mary his sister, the sum of 100/. each, 
three per cent, annuities. All the residue I give to my execu- 
tor ; and I hereby empower him to dispose of by will the resi- 
duum he will be entitled to after the decease of my mother." — 
The mother was dead, and J. Benyon died in her life-time, and 
the plaintifi" was his representative, and filed the bill for the 
legacy of 100/., three per cent, annuities. The Master of the 
Rolls held the legacy to be vested, and said : I do not mean to 
remove the rule, that where a legacy to a person requires that 
he should acquire a particular situation, there the legacy shall 
not vest ; but considering the present as merely a money legacy, 
I think it does not fall within the rule. [ must therefore decree 
the 100/. three per cent, annuities to be transferred to the 
plaintiff, with interest from the death of the mother. ^ 

In May v. Wood, the testator declared : I give to my daugh- 
ters, Mary and Margaret, the sum of 3000/., five per cent, navy 
annuities, and all the dividends and proceeds arising therefrom 
equally to be divided between them, and all my estate at St. 

'2Bro. Ch. Rep. (75.) 


Ojth. to be equally divided between them, when tbey shall arrive 
at twenty-four years of age. One of the daughters married 
and died after arriving at twenty-one, but before she reached 
her twenty-fourth year. The bill was filed by the husband, 
claiming his wife's share of the legacy by virtue of representa- 
tion. Lord Alvanley, M. R., said : It has been contendedj 
upon the part of the plaintiff, that, according to the rule estab- 
lished in all former cases, this legacy must be considered as 
vesting in prcesenti, and the period of twenty-four years an- 
nexed to it is not a condition, but the time when the party 
should be put into complete possession. All the cases establish 
this principle, that when the time is mentioned, as referring to 
the legacy itself, unless it appears to have been fixed by the 
testator as absolutely necessary to have arrived before any part 
of his bounty can attach to the legatee, the legacy attaches im- 
mediately, and the time of payment is merely postponed, not 
being annexed to the substance of the gift ; but if it appears 
that the testator intended it as a condition precedent y upon which 
the legacy must take place, then if such condition or contingency 
does not happen, the gift never arises. It has therefore been 
insisted by the defendant's counsel, that the word when must 
be considered as synonymous to if; it is universally so, where 
the word if is used in denoting a condition annexed, and there- 
fore in such a case, the legacy cannot take place. Here the 
words are, to be equally divided when they arrive at twe7ity-four 
years of age; the latter words refer to the whole of the preced- 
ing sentence, and it is not for me to consider whether the words, 
"to be equally divided," make any difference, and I do decide 
this point without any reference to those words. He then cited 
Atkins V. Hiccocks, 1 Atk. 500, and Onslow v. South, Eq. Ab. 
295, and added : These have been the cases relied upon ; and it 
has been also contended, that, according to the true construction 
of this clause, the word when must be synonymous to if, and 
consequently that the legacy has never vested. Has the court 


ever adopted such a construction ? On the contrary, all the 
cases, for full half a century, upon pecuniary legacies, have de- 
termined that word not as denoting a condition precedent, but 
only marking the period when the party shall have the full bene- 
fit of the gift, except something appears upon the face of the 
will, to show that his bounty should not take place, unless the 
time actually arrived ; and not where he has merely used the 
word when for the sole purpose of postponing the time of pay- 
ment. ' In regard to the preceding proposition, however. Sir 
William Grant, in Hanson v. Graham, is reported to have said: 
This proposition is stated so broadly and generally, that I rather 
doubt the correctness of the report. Considering the well known 
diligence of the late Master of the Rolls in examining cases, and 
his uncommon accuracy in stating the result of them, he would 
hardly have drawn this conclusion from an examination of the 
cases; for no case has determined that the word "when," as 
referred to a period of life, standing by itself, and unqualified 
by any 'words or circumstances, has been ever held to denote 
merely the time at which it is to take efiect in possession ; but, 
standing so unqualified and uncontrolled, it is a word of condi- 
tion ; denoting the time when the gift is to take efiect in sub- 
stance. That this is so, is evident upon mere general princi- 
ples ; for it is just the same, speaking of an uncertain event, 
whether you say "when" or "if" it shall happen. Until it 
happens, that which is grounded upon it cannot take place." 
He asserted that the distinction was derived from the civil law, 
and added : In the case cited, Stapleton v. Cheales, it was 
clearly held that the expressions, " at twenty-one," or "if," or 
" when" he shall attain twenty-one, were all one and the same; 
and in each of those cases, if the legatee died before that time, 
the legacy lapsed. He then notices the distinction between the 

13 Bro. Ch. Rep. 471. 


eflfect of giving a legacy at twenty-one and a legacy payable at 
twenty-one, and says that it also was transferred from the civil law. 
But it was held, notwithstanding, that the legacy in that case 
was vested ; and it is necessary, therefore, that we should look 
further into it. The facts were, that the testator gave to his 
three grand-children 600/. apiece of 4 per cent. Consolidated 
Bank Annuities, when they should respectively attain their ages 
of twenty-one, or day or days of marriage, which should first 
happen, provided, it was with such consent of his executors and 
trustees, as therein mentioned ; and he declared, his mind and 
will was, that the interest of said several 500/. amounting in 
the whole to 1500/. 4 per cent. Consolidated Bank Annuities so 
given to his three grand-children, as aforesaid, as often as the 
same should become due and payable, should be laid out at the 
discretion of his executors and trustees, in such manner as they 
or the suryivor of them should think proper, for the benefit of 
his said grand-children, till they should attain their respective 
ages of twenty- one years, or day or days, of marriage, and to 
and for no other use, intent or purpose whatsoever, &c. The 
testator died, and then one of the grand-children at the age of 
nine years. The bill was filed by the surviving grand-children 
after the death of their mother, for an account of what was due 
in respect of the legacy given to the deceased grand-child. And 
the Master of the Rolls, after considering the effect of " when," 
proceeded : In this cause, therefore. I should have determined 
against the plaintiff's, if it stood merely upon the first words. 
But then it is contended that they are entitled, because interest 
is given ; and that they come within an established rule of the 
court : that though such words are used as would not have vest- 
ed the legacy, yet the circumstance of giving interest is an in- 
dication of intention, explanatory, and denoting that the testa- 
tor meant the whole legacy to belong to the legatee. On the 
other side it was contended, that the interest is not so given as 
to bring it within the general rule, but what is given is more 


like maintenance. It is true^ it has been held, that has not 
the same effect as giving interest ; upon this principle^ that no- 
thing more than a maintenance can be called for — what can be 
shown to be necessary for maintenance, however large the inter- 
est may be ; and therefore what is not taken out of the fund for 
maintenance must follow the fate of the principal, whatever that 
may be. But by this will it is clear the whole interest is given. 
Can there be any doubt, that in this case all the interest became, 
as it fell due, the absolute property of these infants, as separa- 
ted altogether from the residue 1 All that is left to the trustees, 
is to determine in what manner it may be best employed. It is 
not merely so much of the interest as shall be necessary for the 
maintenance, but the interest entirely, separated from the prin- 
cipal. It is therefore the simple case of interest. It was ob- 
served for the defendants, that here is not only the period of the 
age, but also marriage with consent ; and it was asked, suppos- 
ing any of them had married without the consent of the execu» 
tors, was it to vest ? That is just the same question. If it is 
shifted to the question, whether it is to be paid, if any of them 
married without consent, the executors might say, no : the peri- 
od of payment had not arrived. But marriage with consent is 
not a condition precedent ; for at the age of twenty-one, wheth- 
er married with consent or not, they would be entitled. That, 
therefore, not operating as a condition precedent, does not make 
any material distinction. The legacy is accompanied with an 
absolute gift of the interest ; which-, according to the establish- 
ed rule, has the effect of vesting it. I am therefore of opinion, 
that the plaintiffs are entitled.^ 

In Watson v. Hays, the testator directed his estates to be 
sold and the proceeds to be invested in real or government secu- 
rities. He then desired, among other things, his executors to 
pay the sum of 25/. yearly by equal quarterly payments, for the 

n Ves. (239.) 


maintenaiice and education of Sopliia, his natural daughter, until 
she should attain twenty-one, or be married, which should first 
happen, when he required them to pay her 500/. for her own 
sole use and benefit. The legatee survived the testator, but 
died under twenty-one, and unmarried ; and one question was 
whether the legacy had vested. 

The Vice- Chancellor said : Twenty-five pounds is the amount 
of interest on 500/., at 5 per cent. : and as that is the rate of 
interest which money is usually considered to bear, the 25/. di- 
rected to be applied for the maintenance and education of Miss 
Leeson, may be fairly regarded as intended to be the interest of 
the 500/. which is directed to be paid to her on her attaining 
twenty- one, or being married. Therefore, I think that she took 
a vested interest in the 500/, 

There was an appeal from this decision, and upon appeal the 
Lord Chancellor said : There is no gift of the 500/., except in 
the direction to the executors to pay that sum to the daughter, 
when she shall attain twenty-one or be married. Here is the 
word "when" distinctly apphed to the gift itself, and not to 
the time of payment, to which Sir WilHam Grant's judgment 
in Hanson v. Graham (6 Ves. 239) is therefore directly appli- 
cable ; and there is also the absence of any terms of gift, ex- 
cept in the direction to pay at a given time, which never arrived, 
or upon a given event whioh never took place, to which Sir Wil- 
liam Grant's observations in Leake v. Robinson (2 Mer. 363) 
directly apply, and which doctrine has been frequently recogni- 
sed as a settled rule. This case appears to me to come so 
clearly within those rules, that I cannot think that any doubt 
would have been entertained as to this legacy having failed by 
the death of the legatee in infancy, if the question had not been 
supposed to be affected by the gift of the 25/. per annum for its 
maintenance and education. It is well known, that a legacy, 
which would upon the terms of the gift, be contingent upon the 
legatee attaining a certain age, may become vested by a gift c 


•tlie interest in the meantime, whether direct or in the form of 
maintenance, provided it be of the whole interest; which clearly 
marks the principle, that it is the gift of the whole interest 
which affects the vesting of the legacy. In this case, 25/. per 
annum, out of the proceeds of the real and personal estate, 
after investment in real or government securities, is directed to 
be paid quarterly, for the maintenance and education of the 
daughter till twenty-one or marriage, when the 500/. is to be 
paid. That the testator fixed upon the sum of 25/. per annum 
as the interest at 5 per cent, upon 500/. is probable, but it is 
clearly not given as interest upon that sum. The gifts are per- 
fectly distinct, and the title to the 25/. per annum could not be- 
affected by the interest upon 500/. not amounting to that sum. 
In Batsford v. Kibbell, (3 Ves. 363) Lord Rosslyn, there being 
RO gift — except in the direction to pay at a certain age — held 
the legacy not vested before that time, although the legacy was 
of the dividends of 500/. 3 per cents to the legatee, until he 
should attain the age at which the stock was to be transferred 
to him. That case necessarily includes and governs that now 
before me. * 

§ 215. The case last cited in the previous opinion shows that 
a gift of the interest will not have the effect to vest the gift of 
the principal, if there is no gift of the principal except in the 
direction to pay or transfer it at a future period. In that case, 
the testatrix gave to A the dividends of 500/. stock till he should 
attain thirty-two years of age ; at which time she directed hei' 
executors to transfer the principal to him. A died before he 
attained thirty-two, and the bill was filed by the residuary lega- 
tee, upon which the question was whether the legacy to A was 
Tested or contingent. 

The Lord Chancellor said : In this case there is no gift but 

'5 My. & Cr. 125; cited 3 Sim. 501 n. 2. 


in the direction for payment ; and tlie direction for payment at- 
taches only upon a person of the age of thirty-two. Therefore 
he does not fall within the description. In all the other cases 
the thing is given, and the profit of the thing is given. ^ The 
legacy to A was therefore held to be contingent^ and in the 
event that it had fallen into the residue. 

§ 216. When the condition is annexed as well to the interest 
as to the principal, the gift of the interest cannot, of course, 
have the effect of vesting the principal. Thus, if there be a 
gift to A of one thousand dollars with interest at 8 per cent, on 
the day after he shall have arrived at his twenty-first year, the 
gift of both principal and interest is contingent.^ 

§ 21*7. Let us take another case illustrative of the proposition, 
that words importing contingency may be controlled by expres- 
sions and circumstances. In Branstrom v. Wilkinson, the ques- 
tion was upon the following bequest : "I give and bequeath to 
the two twin children of my said niece, Charles Branstrom and 
Frederick Branstrom, my one Dock share in the present new 
Dock at Kingston-upon-Hull, when they shall attain the age of 
twenty-one years, to be equally divided between them, share 
and share alike, and I appoint Mr. John Branstrom, the father, 
in trust for the same, and trustee for them during their minority,* 
—and my will is, that in ease of the death of either of them, 
the survivor to take the whole ; and in case they both die in their- 
minority, I then give the whole Dock share to my said niece and 
her heirs forever-" 

The testator appointed the defendant executor and residuary 
legatee. The bill was filed by the parents and the infant child- 
ren against the executor, praying a transfer of the Dock share. 
The question was whether the children had a vested interest 

'3 Ves. 363. 

2 See 1 Jp.rman on Wills, (766) Watson v. Hayes, vjwiigly cited. 


before twenty- one. It was admitted that the share was to be 
considered as personal estate ; and the dividends, till the majo- 
rity of the children, was claimed by the defendant. The Mas- 
ter of the Rolls said : There is no doubt upon this point. It is 
perfectly clear, what this testator intended to postpone was, not 
the vesting, but the possession. He appoints a trustee. How 
could there be a trustee for them of nothing ] There are many 
cases in which, notwithstanding the word '' when," the interest 
vested. In Hanson v. Graham, I held, that a bequest in these 
terras may be so controlled, by expressions and circumstances, 
as to postpone the possession only, not the vesting. Of what 
is the father trustee during their minority? I cannot put any 
other meaning upon those words. He intended to appoint a 
trustee for them beneficially. ' Accordingly he decreed the 
share to be transferred to the father upon the trusts of the will. 

§ 218. It seems also to be true, that where there is a gift to 
a person or a class "when," "at," "if," "provided," "in 
case," &c., and there is a gift over upon death before the time, 
the first gift will, notwithstanding the apparent contingency, be 
held to be vested in interest, and the gift over construed to be 
a conditional limitation. This construction is settled in regard 
to real property, ^ and it seems equally applicable to personal pro- 
perty. The construction is subject, of course, to the intention 
of the testator, and if, therefore, it appears that he did not in- 
tend the interest to vest before the time, the intention will pre- 
vail : as if he declares that the interest shall not vest until the 
time mentioned shall arrive, or if the gift be to those, "who 
shall attain," &c.,^ or "then living."* 

§ 219. The Master of the Rolls, however, in Bland v. Will- 
iams, denied tlie construction in its fullest extent. He said : 

'7 Yes. (422.) "See 1 Jar. ou Wills, (739.) 

sBiilI v. Pi-itchard, 1 Rus. 2l3. ''Lett v. Randall, 10 Sim. 112. 


If the gift over is simply upon tlie death under twenty-fourj 
then the gift could not vest before that age. In this case, the 
gift over is not simply upon the death under twentj^-four, but 
upon the death under twenty -four without leaving issue. If, 
upon a death under twenty-four, at whatever age issue was left, 
then the gift over is not to take place. It is in effect, therefore, 
a vested interest, with an executory devise over, in case of death 
under twenty-four without leaving issue ; all the cases upon the 
subject, except the one before Lord Gifford, i. e. Bull v. Pritch- 
ard, are reconcilable with this distinction. ' 

§ 220. Mr. Jarman denies that any such distinction is dis- 
coverable in the cases ;^ and he thinks that, on the whole, the 
authorities do not warrant, though they point to the general po- 
sition above taken, when the gift is residuary and to a class. '-^ 
But inasmuch as there seems to be no reason for a different con- 
struction in this respect between real and personal property, and 
as the reason of the construction applies with like force to a 
specific legacy and to a residuary bequest, w^e have ventured to 
take the general position. 

§ 221. It is laid down, that where life interests are bequeath- 
ed to several persons in succession, terminating with a gift to 
children, or any other class of objects then living, the word 
'* then " is held to point to the period of the death of the person 
last named, whether he is or is not the survivor of the several 
legatees for life, and is not considered as referring to the period 
of the determination of the several prior interests.'* Archer 
V. Jegon is cited as authority for the position. In that case a 
testator gave TOGO/, in trust for the sole and separate use of his? 
sister for life, and after her death to her husband, John Graham, 
for his life, "and from and immediately after his decease,'' he 

'3 My. L Keene, 411, 21 j^r. on Wills, (776) n (x) 

'W. (777.) M Jar. on Wills, (768) n (k.) 


bequeathed 7000/, and the interest and dividends thereof unto 
the children of his said sister " who shall then be living." The 
testator died ; then John Graham, leaving a son and four daugh- 
ters ; then one of the daughters died ; and then Mrs. Graham 
died : and the question was, whether the daughter who died took 
a vested interest. The Vice-Chancellor held that she did, say- 
ing : " It is possible that the testator may have mv-rant that those 
children only should take, who should be living at the death of 
the survivor of Mr. and Mrs. Graham ; but he has not said so. 
He certainW, however, contemplated her marrying again." 
After reciting the clause in the will, he added : ^' There the 
word then necessarily refers to the antecedent, ' after his de- 
cease..' "^ But this seems to be an unsatisfactory construction, 
since upon that construction the children seem to have been en- 
titled to fund and interest in exclusion of the mother upon the 
death of the father. 

§ 222. There is a distinction taken between the gift of a spe- 
cific legacy, and the gift of a residue. In May v. Wood, Lord 
Alvanley is reported to have denied that there was a difference ; 
but in Booth v. Booth, he denies the correctness of the report," 
and says : That there is a difference between a bequest of a 
legacy and a residue, with reference to this point, cannot be 
denied, either on principle or precedent. Every intendment, 
he adds, is to be made against holding a man to die intestate, 
who sits down to dispose of the residue of his property.^ 

§ 223. The facts of the case last cited were these : A testa- 
tor gave a fund to trustees ''upon trust to pay the dividends 
and produce thereof as the same should from time to time be- 
come due, equally, between his great-nieces, Phoibe Booth and 
Ann Booth, until their respective marriages ; and from and im- 
mediately after their respective marriages, to assign and trans- 

^8 Sim. 446. 24 Ves. (405) (408.) (=^Id. 407.) 


fer their respective moieties or shares thereof unto them respect- 
ively." Both legatees survived the testator, but one of them 
died unmarried ; and the question was, whether the legacy was 
vested in her and passed to her executor, or whether it belonged 
to the next of "kin of the testator. The Master of the Rolls, 
upon the circumstances of the case, upon the ground that it was 
a residue, and upon the words of the bequest, held that the resi- 
due vested and that the case was an exception to the rule dies 
iiiccrhis in testainento conditioncm facit.'^ 

§ 224. In Leake v. Robinson, Sir William Grant, in speaking 
of the preceding case, said : There is certainly a strong dispo- 
sition in the court to construe a residuary clause so as to pre- 
vent intestacy with regard to any part of the testator's property. 
With all that disposition, it is evident that Lord Alvanley felt 
that be had a difficult case to deal with. Some violence was 
done to the words in favor of what he conceived to be, and what 
in all probabihty was, the intention. That intention, however, 
was collected from circumstances that do not occur in the pres- 
ent case. Both the legatees were adults at the time the will 
was made. Lord Alvanley admits that, if it had been other- 
wise, it might have made some ingredient in the argument. 
Then the whole interest was given to them absolutely — a cir- 
cumxStance which has always been held to furnish a strong pre- 
sumption of intention to vest the capital, and which is not af- 
forded by a direction for maintenance out of the interest, as was 
decided in the case of Pulsford v. Hunter.^ The legatees might 
both live to extreme old age, without the event ever happening 
on v/hich the legacy was made payable. There was no survi- 
vorship between them, nor was there any bequest over in the 
event of the death of both or either , so that intestacy must 
have been the consequence of death before marriage. ^ 

U Yes. (409-10.) 23 gj-o. Ch, Rep. 416. =2 Mer. (294)-(295.) 


§ 225. If, however, there is anything in the distinction, it is 
nothing more than this : that a presumption arises from the gift 
being a residuary gift, as it does from the gift of interest, that 
the donor intended a vested, and not a contingent gift. But in 
order for the presumption to arise from a residuary gift, it is 
necessary that the holding it vested will have the effect in every 
event of preventing intestacy ; for otherwise, the basis of the 
presumption does not exist. ^ And here it may be added, that 
when there is a gift over to the survivor or survivors, in case one 
or more of the class dies before the time, the presumption of 
a vested interest being intended, is much stronger than when 
the gift over is to a stranger ; for how can there be survivorship 
unless there is somethino; to survive '? 

§ 226. In regard to sums payable out of land in fiituro, the 
old rule, says Mr. Jarman, was, that, whether charged on the 
real estate prim^arily, or in aid of the personalty, they could not 
be raised out of the land, if the devisee died before the time of 
payment ; (and this, it seems, that the inheritance might not be 
unnecessarily burthened;) but this doctrine has undergone some 
modification ; and the established distinction now is, that if the 
payment be postponed with reference to the circumstances of the 
devisee of the money ^ as in case of legacy to A, to be paid to 
him at his age of twenty-one years, the charge fails, as formerly, 
unless the devisee lives to the time of payment ; and that, too, 
though interest in the meantime be given for maintenance. But 
on the other hand, if the postponement of payment appear to 
have reference to the situation or convenience of the estate ^ as, 
if land be devised to A for life, remainder to B in fee, charged 
with a legacy to C, payable at the death of A, the legacy will 
vest instanter; and consequently, if C die before the day of 
payment, his representatives will be entitled ; the raising of 

1 Lett V. Randall, 10 Sim. (117.) 


the money being evidently deferred until tlie decease of Aj in 
order that he may, in the meantime, enjoy the land free from 
the burthen. * 

§ 22T. There is a matter of construction which may be no- 
ticed here. If chattels personal be given by will to A and her 
son, or to her and her sons, or her daughters, or her child- 
ren, and A has a son, or &c., thei^e is a joint taking ; but if at 
the time the interest falls into possession there is not and has 
not been a son, then A takes the whole. Thus, if there be a 
gift to A and her children after the death of B, and A have 
no children at the death of B, she takes the whole property, 
and no child which she may afterwards have can claim under 
the gift. 

§ 228. In cases of real property, it has sometimes been held 
that " son " is a word of limitation, but there must be a neces- 
sary inference from the context that the whole line of male issue 
was included hj the intention. ^ In Malcolm v. Taylor, where 
the gift was of personalty " unto the said John Malcolm and 
his assigns for life ; and after his decease to his eldest son for- 
ever," the Lord Chancellor said ; That " son " may be a word 
of limitation is not denied ; but there must be some plain reason 
for making it so. None of the cases from Byfield's case down- 
wards, certainly not Robinson v. Robinson, came at all near the 
violence which it would be doing to the obvious meaning of this 
clause to construe " eldest son " as nomen coUecfivum. As to 
the superadded words "forever," they clearly are only used to 
contradistinguish the interest which the eldest son of John Mal- 
colm was to take, from that which John Malcolm himself was 
to take ; the one for life, the other absolutely. ^ 

U Jar. on Wills, (756)5 see further (757)-(759) and more fully 1 
Rop. Leg. Chap. x. & xi. 

^Byfield's case cited, 1 Vent. 231 ; Sonday's case 9 Rep. 127; Rob- 
inson v. Robinson, 1 Bur. 38. 32 Rus. & My. 416. 


§ 229. In Corbet's case, Walmsley, J. said, that if a man 
makes a feoffment in fee of land to the use of A and his heirs 
every Monday, and to the use of B and his heirs every Tuesday, 
and to the use of C and his heirs every Wednesday, these limi- 
tations are void ; for we do not find such fractions of estates in 
law. ' If such limitations of realty by way of use are void, so 
also would such limitations of personalty be void. If, however, 
there were a like limitation for each day in the week, as, to A 
every Monday, to B every Tuesday, to C every Wednesday, to 
D every Thursday, to E every Friday, to F every Saturday, 
and to G every Sunday, the construction ought to be that the 
grantees take jointly, and not that the limitations are void. 
Such construction is supported by analogy, for where there is a 
devise to " heirs " in England, and there are superadded words 
of modification, as share and share alike, or as tenants in com- 
mon, the words of modification are held to be void ; and it is 
required by the maxim uf res magis vakat quam pereat. 

It might, indeed, be contended, that if a limitation were made 
to A and his heirs every Monday, the whole fee would pass, 
since when a grant is made whatever is necessary to the enjoy- 
ment of the grant, passes also ; and the whole fee must pass to 
A in order that he may enjoy it en every Monday. And a-s in 
the case put by Walmsley, A, B and C ought to take the whole 
fee jointly. 

§ 230. Any number of future limitations of personal, as well 
as of real property, may be made, and each one of them may 
carry the whole interest ; but then each limitation subsequent 
to the first limitation carrying the whole interest, must be a con- 
ditional limitation, or it must be a mere alternative limitation. 

§ 231. An alternative limitation is a limitation which is to 
take effect in case the preceding limitation should fail to take 

•1 Rep. 87. 


effect. An alternative limitation may be of a partial or abso- 
lute interest in prcEsenti. Thus, if A bequeath chattels to B 
for life or absolutely, but if B should die before the testator, 
then to C, the limitation to C would be a mere alternative lim- 

It may be of a future partial, or absolute interest. Thus, if 
there be a gift of chattels to A for life, remainder to B for life 
or absolutely, but if B be dead before A then to C, the limita- 
tion to C would be a mere alternative limitation with the limita- 
tion to B, though as to the limitation to A it would be a quasi 
remainder. This shows that a limitation may have one charac- 
ter as to one limitation, and another character as to another 
limitation. All quasi remainders, and all conditional limitations 
are, indeed, ex vi termini, alternative limitations, unless a con- 
trary intent appear, but then they are something more. 

§ 232. If a limitation take effect, all limitations, which are 
merely alternative with it, are forever defeated ; but if the sub- 
sequent limitations are quasi remainders, or conditional limita- 
tions, then, though they have lost their character as alternative 
limitations by the taking effect of the prior limitations, yet they 
may still take effect at the time limited. 

§ 233. Difficulty frequently arises in determining whether a 
limitation is to take effect as an alternative merely with a prior 
limitation, or whether it is to take effect as a conditional limita- 
tion, or as a limitation by way of remainder. (^z) 

Thus^ in Huickley v. Simmons, the bequest was: "I do give and 
bequeath unto my sister Mary Hinckley all my fortune and everything 
I have a power to leave; and in case of her deaths I do then give and 

(a) The reason for stating the many cases which follow is, tha.t such 
cases frequently arise, and their determination depends upon prece- 
dent, rather than principle. The general reader may therefore pass 
pver them to g 234. 


bequeath all I have to my motlier, Mary Khickley," Tlie Lord Chan- 
cellor said : "Upon the construction of the will, I am perfectly satisfied 
upon the case of Lowfield v. Stoneham, 2 Str. 1261, which is precisely 
this — taking the words to import a continf^ency, and not limiting the 
estate of the defendant Mary Simmons (the sister, formerly Mary 
Hinckley,) to an estate for life— I am of opinion she is entitled abso- 

So, in the older case of Trotter v. Williams, J. S. bequeathed to A 
500/., to B 500/., and gave 500/. apiece to five others, and then declared, 
"if any to whom I have given any money legacy happen to die, theti 
her legacy, and also the residue of my personal estate, shall go to such 
of them as shall be then living, equally to be divided betwixt them 
all." It was held that the words, " shall go to such of them as shall be 
then living," must refer to a certain time, and that is when the legacies 
become payable, which is at the death of the testator, so that the death 
of any of the legatees after would not carry it to the survivors. - 

In a marginal note to the case last cited, it is said : If a time of pay- 
ment liad been limited, that might have made it another construction 
than now it will — Fer Rawlinson, who cites the case of Clerk and 
Bridges; and it seems very clear that it would. 

But in Lord Douglas v. Chalmer, the question was upon the follow- 
ing clause of a codicil : "for and to the use and behoof of my daugh- 
ter, Francis Lady Douglas, and m case of her decease, to the use and be- 
hoof of her children, share and share alike." The Lord Chancellor 
said : Such a gift implies naturally that the parent is to take for life, 
and that the children are to take the capital; but the period at which 
their interests commence can only happen at the death of the parent. 
It would be m.uch too subtle to make a different construction fi'om 
that which would arise from the use of the words "at her decease,"' or 
" from her decease," which would clearly mark the situation and pe- 
riod at which the bequest over is to take effect. The argument for the 
plaintiffs requires me to imply a particular event, the death of Lady 
Douglas in the life of her mother; without e^ipress words, or some 
very particular intimation of that intention, it would be such a con- 
struction against the natural import of the expressions used, as the 
court would not be warranted in making.^ And on another day he 
said: I have not found any case, and I have looked very carefully 
into them all, that bears against my decision. Lord Suffolk v. Lord 
Binden applies to a different subject; vvords creating a joint tenancy 

U Ves. (160.) 22 Kq. Ca. Ab. 344, M. 2. 

32 Ves. 505. 


up to a certain period upon a tenancy in common. In Trotter v.WilU 
iams, the construction was inevitable; the testator there could not 
mean to reduce the legacies to an interest in life for each ] and it was 
apparently providing against a lapse. Nowlan v. Neliigan, cited on 
the other side, was much stronger than this. All the arguments used 
are convertible arguments.-*- 

In Bilhngs v. Sandom, the bequest was : " I give to my sister Sarah 
Sandom the sum of 1000^.; and^ in case of her demise^ I give to James 
Billings 800Z., and to John Billings the remaining sum of 200^. There 
was a residuary gift to the sister absolutely. The Lord Chancellor 
said, according to the best construction he could put, the testator meant 
to give a share of his bounty to his sister, and also to the others : the 
word '■'■and^'' imphed this; therefore that she should have it for life, and 
then they should take it. 2 This case has lately been characterized as 
one "vi'hich happens to be another Gibraltar case."^ 

In Nowlan v. Nelliganj the bequest was : "I give and devise to my 
beloved wife, Harriet Nowlan, all my real and personal estate; I make 
no provision expressly for my dear daughter, knowing that it is my 
dear wife's happiness, as well as mine, to see her comfortably pro- 
vided for; but, in case of death happening to my said wife, in tha< 
case, I hereby request my friends Staples and Hunter to take care 0I 
and manage to the best advantage for my lovely daughter, Harrie 
Nowlan, all and whatsoever I may die possessed of." The Lor 
Chancellor said, that it was impossible to tell with precision what wa 
the testator's meaning, but he thought it too much to determine, thr 
in case of death happening, meant dying in the husband's life-time 
that therefore the meaning must be supposed to be in the event of h( 
deaih, whenever it should happen.* 

In Webster v. Hale, James Findlay bequeathed to his executors c 
trust the sum of 8000^. stock in the 5 per cent. Irish Fund, for the usi 
exclusive right and property of his dear sister, Clementina Webster 
but should Clementina Webster happen to die, then in that case, th 
above-mentioned sum of 8000/. 5 per cent. Irish stock, was to be d': 
vided among her children, male and female, in equal shares; and ht 
also bequeathed to his said sister the sum of 4000/. in the 3 per cent 
reduced stock, to be paid to her as soon as possible, or in the event o 
her death, the said sura of 4000/, in the 3 per cent, reduced stock wa; 
to be divided amongst her children, share and sliare alike. 

^2 Ves. 507. M gro. Ch. C. (394.) 

^Knight Bruce, V. C, in Smith v, Stewart, 3 Eng. L. & Eq. Rep. 176. 

M Bro. Ch. C. 489. 


He also bequeathed to his sister, Helen Fincllay, the sum of 1000/, 
East India stock; and, in case of her death, the sum of 1000/. East In- 
dia stock was to be divided among her children, share and share alike. 
He then gave his step-mother, iMrs. James Findlay, the sum of 2000/. 
3 per cent, reduced stock, to be paid to her as soon as possible; and 
to be entirely at her own disposal; and he also gave Janet Walker the 
sum of 1000/. in the 4 per cent, stock; and he gave several other spe- 
cific and pecuniary legacies. 

The bill was filed by Clementina Webster, Helen Findlay. and 
Janet Simpson, formerly Walker, and their husbands, claiming their 
respective legacies absolutely. 

The Master of the Rolls said : The difficulty in all such cases is to 
ascertain what the testator intended by applying words of contingency 
to an event that is certain. The words, taken literally, imply doubt as 
to an event, of which no doubt could be entertained. A construction, 
therefore, is absolutely necessary; either that, whenever the first leg- 
atee dies, the other shall take ; or, that if the first is prevented from 
taking by dying in the life of the testator, the other shall be substituted 
for him; in other words, whether it means an interest for life to one, 
with remainder to the others, or only, that in case one does not take, 
the other shall. The first consideration is, which construction the 
v/ords naturally bear. It does seem, that the two first bequests point 
more to an alternative disposition, either to Mrs. Webster or to her 
children, than to a bequest in succession, first to her, and afterwards 
to her children. In the first bequest he uses words which seem to 
convey an intention of giving her the absolute property in the stock. 
The w^ord "6ur' is disjunctive and adversative. It opposes one case 
to another^ and implies that the children are to take in an event differ- 
ent from that in which the parent is to take. In making the second 
bequest to the same sister of 4000/., a diflferent stock, he directs it to be 
paid to her as soon as possible, or in the event of her death to be di- 
vided among the children. The direction for payment to her strongly 
implies an intention to make it her entire and absolute property; and 
what follows, is again a disposition in the alternative, in the sense in 
which I understand it, when following words conveying an intention 
to give absolutely; in the event of the mother being incapable by her 
'ieath of taking absolutely, then to her children. 

The other bequest to Mrs. Findlay is in the very terms of Lord 
Douglas v. Chalmer; and if that stood alone, I should be bound to- 
the same construction. But if the testator did net mean to confine 
Mrs. Webster to an interest for life in her legacy, it is by no means pro- 
bable that he meant to confine Mrs. Findlay, his other sister, to the 
receipt merely of the interest of her legacy. There are hardly two 


clauses of this will even for the same thing, conceived in the same 
manner. I think, therefore, it does sufficiently appear, the testator 
meant Mrs. Webster to take absolutely, if at all; and I cannot, from 
this very slight variation, collect a contrary intention as to the, otlier 
sister. They therefore take absolute interests in all the three legacies.' 

In a preceding case, that of Cambridge v. Rous, the testator being in 
the East Indies, made among others the following disposition to 
his two sisters, then in England. "I give, devise and bequeath to 
my eldest sister, Martha Mierop, the sum of 4000^. sterling, lawful 
money of Great Britain;, and in case of her death, to devolve upon her 
sister, Cornelia Mierop. I give, devise and bequeath to my youngest 
sister, Cornelia Mierop, the sum of 4000Z. lawful money of Great Brit- 
tain, and in case of her death, to devolve upon her sister, Martha 

The Master of the Rolls said: The words in which the bequest over 
is expressed have not, in themselves, nor have they by construction 
received a precise and definite meaning; in which they must be uni- 
formly understood. The expression itself is incorrect; as it applies 
words of contingency to an event, which is certain. No man can, 
with propriety, speak of death as a contingent event, which may or 
may not happen. When, therefore, a testator so expresses himself, 
the question is, what he means by that inaccurate expression. He 
may, perhaps, have had some contingency in his mind; as, that the 
legatee was dead at the time he was making his will, or might be dead 
before his own death, or, before the legacy should be paya'-ile: and 
then the inaccuracy consists in not specifying the period, to which the 
death was to be referred. He might have meant to speak generally of 
death, whenever it might happen; and then the contingent or condi- 
tional v/ords must be rejected; and words of absolute signification 
must be introduced; and, accordingly, in every instance in which these 
words have been used; the courts have endeavored to collect from the 
nature and circumstances of the bequest, or the context of the will, in 
which of these two senses, it is most likely, this doubtful and am- 
biguous expression was employed. 

In Billings v. Sandom, the testator's mode of giving the residue, con- 
trasted with the mode of giving the particular legacy, afforded evi- 
dence that one was given absolutely, and a limited interest only in the 
other.(a; In conformity to that intention, the words weie there con- 
strued to be the same as "af or "upon" her demise. In Nolan v. 

^8 Ves. (410.) 

(a) Sut see if this be true—" and" I 


Nelligan, it was evident some benefit was intended for the daughter: 
but it was doubtful, as the extent was not clearly expressed, whether 
it could be made effectual by imposing a trust upon the will — some 
benefit, however, was evidently intended for the daughter; aiid none 
could be assured to her except by limiting her mother to an interest 
for life. The construction was, therefore, agreeably io the intention, 
that the words meant *' upon," or '' at.'" In Lord Douglas v. Chalmer, 
Lord Eosslyn thought, that from the whole will he was able to collect 
an intention to make a provision for the children; to effect which it 
was necessary to construe, as he did, the words, "in case of her de- 
cease." But he did not determine, that is the only construction the 
words will bear. The contrary i3 evident from the whole scope of 
his argument, and from his decision in Hinckley v. Simmons; in 
which precisely the same words were differently construed. The case 
referred to by Lord Rosslyn, Lowfield v. Stoneham, is, as has been 
stated, a Nisi Prius case, before Lord Chief Justice Lee, The only 
point reported is, that parol evidence Vv'as not admissible, as it cer- 
tainly was not, for the purpose of showing the intention, that Joseph 
Stoneham should have only the interest of the 1000/., and that upon 
his death, whenever it should happen, it should go over. But it is 
sufficiently apparent, the opinion of the court was against the defend- 
ant; who therefore thought it necessary to attempt to introduce parol 
evidence, to show an intention coutrary to the construction, which, 
upon the face of tiie will. Judges were disposed to put upon it. In 
King V. Taylor,^ Lord Aivanley very property held, that the^word " if" 
did not mean *' when" ; but only referred to the contingency oi the leg- 
atee's death, before the legacy became payable. 

As it appears, then, the construction is to depend upon the inten- 
tion, what is most likely to have been the intention in this case ?- The 
testator being at a great distance f.iom this country, it might be matter 
of uncertainty, whether both his sisters were living at that time; a.nd 
it is possible, he might have meant nothing more than, in case of 
either bemg dead. I owever, there is an ubseixe here uf any such 
circumstances as might iiave influenced the construction in any of the 
three cases relied upon tor the plaintifi'. The case therelore resembles 
more Hinckley v. Simmons, and Lowfield v. Stor.eha*^, than either of 
the ether thiee. In those two, no particular circauistanccs to influ- 
ence the construction appeared : nothing to yrgue from in the context 
of the will; and they seem to support the pro/osition, ihat when such 
words occur by themselves, and there is nothing to explain lhem,they 

^5 Yes. (807.) 


import the contingency of dying before the testator. But there is, not 
only an absence of any such circumstances as occurred in either of 
the cases rehed upon for the plaintiff, or leading to that construction, 
but a strong improbability, that the testator had the intention that con- 
struction imputes. It is to be presumed naturally, that he meant a 
separate and independent provision for each sister, if both should be 
alive, to take the benefit: but by the plaintiff's construction, during 
their joint lives, neither of them could touch a shilling, or make use 
of her share, for her own establishment, or the use of her family; and 
if one died leaving children, her share could not have been used for 
her family, but would have gone to her sister; for no other reason, but 
that she happened to survive. Ordinarily, in gifts between such near 
relations, if any restraint is imposed upon the first taker, it is for the 
benefit of the children. The supposition that it is a gift of 4000/. to 
each for life, with reciprocal remainders of each other's legacies, is the 
most absurd disposition that ever was made ; for when Martha died, 
her 4000/. would go from her family to Cornelia, and when Cornelia 
died, her 4000/. would go to Martha's family; the family of each taking 
4000/., but not her own. The absurdity of that proposition induces 
the plaintiffs to contend, that their construction does not necessarily 
lead to that; and they u^ish to read the will, as if the words "in the 
life-time'- of the other were inserted. That is departing from the con- 
struction of dying generally; and adopting some period; and so far 
giving way to the argument of the defendants, fixing upon a period to 
give effect to the bequest ovef. If we must take a period, which is 
the most likely to be intended: to suspend the vesting, till one sister 
should die; or to give to both absolutely, if both should survive the 
testator? I think he intended that, if both should be alive at his death, 
both should take absolutely; and if it is not so, it is difficult to put any 
other construction than that, which the defendants say is necessary, 
if the plaintiff's construction is to prevail.^ 

In King v. Taylor, the testatrix bequeathed to her son a sum of stock, 
'■ when he has attained the age of twenty-three, likewise " her house- 
hold goods, plate, china, and a box of linen. And to her daughter 
she bequeathed her wearing apparel and a sum of stock, and desired, 
if the daughters husband be living, that the stock should be trans- 
ferred to certain persons whom she appointed trustees to hold and 
manage the same for her daughter's benefit. She then bequeathed 
whatever interest mighc be due to her, "jointly between my aforesaid 
two children," and added, " then I do will and ordain that, if either of 

'8 Yes, (l2)~-see, also, Ommaney v. Bevan, 18 Ves. (291.) 


■my children should die, the surviving shall have what I have left to 
the other."' The testatrix died, and then the daughter, and the contest 
was between the husband, as plaintiff, and the son, as defendant. 

The Master of the Rolls said: I am much inclined to think it im- 
possible to raise any judicial doubt upon this case; for repugnancies 
wculd arise from the construction of the defendant. This is perfectly 
distinguishable from all the cases, upon the words, "in case of," "if it 
should happen," &c.: for here is a specific time pointed out, at which it ap- 
pears evidently to be the intention, that the legatee should be put in complete pos- 
session of the legacy; which must be expunged, and declared not to 
operate to any intent whatsoever, and to have been put in for no pur- 
pose, upon the defendant's construction. The disposition in favor of 
these children preceding that clause, is without any limitation, or inti- 
mation that they are to be prevented from the full enjoyment of it; or, 
that if either should die leaving children, that share should not go to 
them, but to the survivor. Then comes this clause— I do not recollect 
M^hether these precise words, -'if either of my children should die," 
have occurred. Trotter v, Williams is in favor of the plaintiff: the 
other cases, as far as they have gone, are with the defendant. I do 
.not agree with the argument for ihe defendant, in distinguishing this 
case from Trotter v. Williams. It is directly in point; and almost 
exactly the same as the present. But subsequent cases have occurred, 
in which words very similar to these have been confined to the death 
of the party." He cited Billings v. Sandom, and Nowlan v. Nelligan, 
and said, "the words in these cases are not *'if he should die," which 
is a very extraordinary condition to creep into any v^^ill, but 'mu case 
of his death;" which has more reference to the time than the other ex- 
pression." He cited Lord Douglas v. Chalm.er, and said the Lord 
Chancellor's reasons in that case certainly did not apply to this one; 
and added: "The Lord Chancellor, after considering all the cases, con- 
tinued of the same opinion; shows how the case of Lord Bindon v. 
Lord Suffolk applied to a different subject; and says, in Trotter v. Wil- 
liams, the construction was inevitable, and it was only providing 
against a lapse. It was no more so there than in this case. I say the 
same here. The legacy of the defendant vested at the age of tv.'enty- 
three; and it would be totally iuconsistent to make that an interest for 
life only, and to expunge what precedes tliese blind words." Re con- 
cludes ; This case comes up to Trotter v. Williams; and is by no 
means atlected by either the decisions or the reasoning of the other 
three cases; and the ground of my decision is, that the construction 
that these words mean, whenever the death of either shal! happen, 
would be toially inconsistent with the rest of the u-iU. The conclu 


sion is, that there was an absohile hiterest in the daughter at the deat'b 
the testatrix; and in the son at the age of twenty-three;, and as to the 
former, it is put into the hands of trustees by words, the construction 
of which must be, that it is to her separate use.i 

In LafFer v. Edwards, a testator bequeathed a sum of stock to trus- 
tees, upon trust for his wife, for hfe : and after her death, to pay one- 
third part of the principal to his son, J. E., if he should then be living ; 
and if dead, to his chihl or children: and one-third to his daughter, M. 
A. E., if living at the decease of his wife; and if dead, to her child or 
children ; and the remaining ihird to his daughter, H. E,. or her child or 
children, in the same manner. Provided, ai'v/ays, that if either of his 
said daughters should die unmarried and without issue, then their shares 
should go to his son, J. E., if hvitig; and if dead, to his children. L E.,. 
the testator's wife, died in his life-time, bnt the son and daughters sur- 
vived him. Sir John Leach, V. C, held, that in tiie events that had 
happened, the interests of the daughter vested in them absolutely. 
That the deaths of the daughters unmarried and without issue, was 
plainly referable to their deaihs in the life-time of the wife. That the- 
only contingency in favor of their issue was, the chance of their deaths 
in the life-time of the wife.^ 

In Home v. Pillans, the testator's will contained, among others, th<? 
following provisions; — ^'I give and bequeath to my nieces, Catherine 
and Mary, the sum of 20O0/. sterling each, luhen and if they should attain 
their ages ^f twevitii-ov.e years^ and Vv'hich said legacies to my said two 
rrieces 1 give to them for their and each of their own sole and separate 
use. free froiri the debts or control of their or either of their hu-sbands: 
and in case of the death of my said nieces, or eitiier of them, leaving a 
child or children, I give and bequeath the share or shares of each of 
my said nieces, or niece so dying, unto their, or her respective children 
or child."' The residuary clause of the will gave the residue of the tes- 
tytor's personal estate to trustees, upon trust for his nephew, William 
C. ]\iacpherson, to be transferred and paid to hirn when and if he 
should attain the age of twenty-one; and it then proceeds m these 
v/ords : — And in case of Ins death under that age, then to tny said 
nephews, David and John Home, and to my said nieces, Catherine 
and Mary Home, in equal shares and proportions; the shares of my 
said nieces to be enjoyed by them respectively, for tlieir respective 
lives, for their own s.ole and separate use, free from the debts or con- 
trol of their respective husbands, and o-n their death the share of each 
of them to go to their respective children; the children of each to take 

'5Ves.80G. 23 Mad. 210— as stated by Smith, 2 Fearne's R., g 136, a. 


the ftliLire of their respective parents equally."-' Tlie Master cf the Roll> 
hehi that the interest taken by each of the testator's nieces in the 20U0/. 
legacy did not become absokite on their respectively attaining the ag<' 
of t'.venty-one, bnt continned to be subject to an executory beqaesL 
over., in the event of their leaving children liviL'g at their deaili; and 
an appeal was bronght from that decision. The Lord Chancellor, al- 
ter a most elaborate examination of the case, declared : I am, on the 
whole, clearly of opinion, that the decree cannot stand; that it gives a 
construction to the will neither consistent with the natural import oi 
ihe W'ords, nor borne out by any authority; while it is contradicted by 
all the decisions upon the pouit, and almost all the authority upon 
questions of a similar kind.'' The nieces were therefore held to be 
entitled to an absolute interest in their legacies of 2000/., upon altain- 
jug the age of twenty-one respectively. J- 

The case of Child v. Giblett must be cited here. In that case, the 
testator bequeathed a residue to his two daughters, Selina and Eliza- 
beth, in equal proportions, "and in case of the death of eitiier, i give 
the whole thereof to the survivor of them; and in the event of their 
marrying and having children, then to the child or children of them, 
or the survivor of them, if they shall attain the age of tvventy-one 
years; but if not, then among the children of Paul Giblett, share and 
shore alike; and if only one child, then the whole thereof to that one 
child.'" The Master of the Rolls said : The rule is, rhat, where there 
is a bequest to two persons, and m case of the death of one of them, 
to the survivor, the words, "in case of the death," are to be restricted 
to the life of the testator; but the question is, wiiether the first expres' 
sion used by this testator, to which this rule would apply, is not quah 
ified by the subsequent words of the will. The testator cannot possi- 
bly have intended that the children of Paul Giblett shonid take in the 
event of a marriage of his daughters, and their death without children 
in his life-time, and that they should not take in the event of a mar- 
riage of his daughters and their dying without children, after his de« 
cease. That would not be a rational distinction. J am of opinion, 
therefore, that the general rule is here qualiiied by the subsequent 
words used r.y the testator; and that in the event of the plaintiff (tlie 
surviving sister, the other having died unmarried and without issue,) 
dying without children, or if she should have children, and none of 
them live to attain the age of twenty-one, the children of Paul Giblett 
will be entitled to the residuary property of the testator. ^ 

' 1 Coop. Sel. Ca. 198~same case published iu 7 and 8 Eng. Ch. R. 
"3 Mv. & Keeiie, 71. 


I The case of McGraw v. Davenport & Wife mu&t also be cited. In 
that case, the testator gave to his wife seven negroes for hfe, and be 
directed that at her death they, with their increase, should be equally 
divided by valuation between his two daughters, Louisa and Cyuthiaj 
•' or should either of them die without issue, the other is to get the 
whole of the seven negroes, and their increase." It was held, that the 
death of the wife was the period at which one of the daughters must 
be dead without issue, in order to entitle the survivor to take the whole. 
and therefore that the limitation was an alternative limitation, and not 
a limitation to take effect after an indefinite failure of issue. ^ 

In Smith v. Stewart, the testator gave his "gold watch to my brother 
James; in case of his death before me, to my sister Agnes; and in 
case of her death before me, then to the eldest son of my sister Ag- 
nes;" all the residue of his property, after payment of his debts, &c., 
he directed to be divided into fourteen equal shares, and he then gave 
certain shares to certain persons, and added: '■^ and I direct that the whole 
of the said legatees shall have the benefit of the survivorship between them, in 
the event of airy one or more of them dying without leaving issue?'' 

Kuiglit Bruce, V. C, said: Tiie question in this special case is, as to 
the meaning of the words, " dying without leaving issue," contained 
in the will before the court. Three constructions may be suggested, 
namely — first, that they mean "dying in my life-time, without leaving 
issue ; secondly, that they mean, "dymg after my decease, without leav- 
ing issue;" and, thirdly, that they mean, "whether in my life-time or 
alter my decease, without leaving issue." It is only necessary to decide 
whether the fust construction is right or wrong; for, as I understand, 
all the legatees mentioned in the will are alive. That construction 
appears to me not according to the proper force, ordinary sense, or 
presumptive meaning of the words: and therefore ought not to be 
adopted,, unless a departure from the proper force, ordinary cause, or 
presumptive meaning, should be required by the context, or by cir- 
cumstances, if any, admissible in evidence. Extrinsic circumstances 
are here out of the case, so that the only point is upon the context. 
The directions as to the watch, seem to me, if not immaterial, rather to 
bear against, than for the first construction. The language of contin- 
gency which the testator has made use of, is not inaccurate, as the 
proposition that a marx will die without leaving issue, differs from 
the proposition that a man will die. It may also be remarked that, if 
James Smith (one of the legatees) had died in the testator's life-time, the 
shares given to him mtisi have lapsed, whether he left i&sue surviving, 
or net surviving the testator, or left no issue ; for there is no gift l)y 

'6 Porter, 319. 


V'ny of substitution, or otherwise, to any issue of James Smith. This 
name I, of course, select merely by way of giving one instance. 

On the whole, I am of opinion, that the context does not warrant a 
departure from the proper force, ordinary sense, or presumptive mean- 
ing of the words under consideration, and that the first construction 
cannot be adopted, and that one of the other two is right. 

This is a conclusion wliich, I think, is not forbidden l.)y Cambridge 
V. Rous, 8 Ves. 12, nor by any authority previous or subsequent tf' 
Billings V. Sandom, 1 Bro. C. C, 393, which happens to be another 
Gibraltar case.^ 

§ 231. But let us turn now to another matter. In Patterson v. 
Ellis, Edmonds, Senator, said : " It is also a rule of law, that a 
devise of the interest or of the rents and profits^ is a devise of the 
thing itself, out of which that interest or those rents and profit.^ 
may issue. This rule, however, is to be understood with some 
limitations. ¥/here the intention of the testator to give only the 
use is clear, manifest and undisputed, the rule must 3deld to the 
stronger force of the intention ; but where it is doubtful whether 
the use only, or the absolute ownership^ was intended to be given, 
the rule has been allowed to have a controlling effect. It is by 
no means clear, that in the case before us the use only was de- 
vised. If there is any doubt, it is v/hether the ownership was 
not intended to be given, and the rule to which I have adverted, 
comes with great propriety to our aid in solving the question. '^ 
Afterwards he adds : " It is undoubtedly now a v>^ell-estabhshed 
rule, that when the use of a chattel is devised to one for life, 
with remainder to another, the devise of the remainder is valid > 
The devi&e for life in such case must be clear and explicit, and 
the intention of the testator to give only the tse for life must be 
undisputed."^ The Supreme Court of Arkansas sanctioned 
the rule, so laid down, in the case of Moody v. Walker.^ 

13 Eng. L. & Eq. Rep. 175; 20 Law J. Rep. (N. S.) Chanc. 205— 
see, upon this subject, 2 Fearne's Rem., by Smith, ^ 656, it seq. 
211 Wend. 298-299. 
33 Ark. 188; see Butterfield v. Butterfield, 1 Ves. sr, 153. 


§ 285. Now it is certainly true that a gift of the profits of 
a thing is pro tanto a gift of the thing ;(a) but it does not 
seem to follow from that rule, that a gift for life must be clear 
and explicit, and that the intention of the donor to give onl}^ the 
use for life must be undisputed ; nor does that rule seem to fur- 
nish any aid in solving the question whether a gift is a gift for 
life, or a gift absolutely. We have first to determine whether 
it is a gift for life, and if it be, then it is but a gift of the use ; 
n.nd whether it be so expressly or by implication, makes no dif- 
ference. ^ And we deny, when it is doubtful, whether the first 
gift be for life or absolutely, that tlie rule is, that it shall be 
construed to be an absolute gift ; and, on the contrary, v;e as- 
sert the rule upon principle to be in favor of construing the first 
gift to be for life, and thus allowing the subsequent limitation to 
take effect, ut res rnagis vakat quam pereat.^ 

§ 235'^. If there be a gift of a chattel, and there be no gift 
over, and it is doubtful whether a partial or absolute interest 
was intended to be given, then the rule undoubtedly is to con- 
strue the gift to be absolute rather than partial. But that rule 
had nothing to do in Patterson v, Ellis. In that case there was 
a limitation to A ; and if she died under twenty-one without 
leaving issue, then over ; the question was as to the validity of 
the limitation over, and the court held it to be void for remote- 
ness. And here we may add, that no case in the books does 
more violence to authority , for dying without leaving issue 
means, as to personalty, a dying without issue at the death ; 
and had ^Meaving" been omitted, and the subject been real 

(o) Gift of interest of tOOO/. to a woman for her sole and separate 
nse ; held to be an absolute gift of the priucipaL Humphrey v. Hum- 
phrey, 6 Eng. L. & Eq. Rep. 113. 

Wes. sr. 13.5, Page v. Leapingwell, 18 Yes. (467): 8 Vin. Abr. 287, 

?; 14; case per Doddridge J. and Coke Ch. J. 

2See Exel v. Wallace, 2 Yes. sr. (111.) 


property, the construction should have been, without issue at 
the death ; because a dying under a certain age without issue, 
?3, by authority, a dying without leaving issue at that time. • 

§ 236. Great difference of opinion exists in regard to the poli- 
cy of allowing partial and future interests in chattels personal 
to be created. 

§ 237. Judge Tucker apprehends that they are calculated to 
create mischief and to give rise to vexatious litigation ; that the 
preservation of his rights by the remainder-man will lead to a 
perpetual espionage into the conduct of the tenant for life; and 
that this prying into the private concerns of the latter will fre- 
quently excite the most bitter animosity on his part ; that there 
are few principles in the law^ more calculated to generate and 
cherish petty k?7 suits than this ; and that the wisdom of the 
old common law is perhaps nowhere more conspicuous than in 
totally discountenancing ail such limitations. * it is further 
urged that it is the policy of our law to keep all property, es- 
pecially chattels personal, which are the chief instruments of 
commerce, free from all incumbrances and embarrassments ; that 
it may be transferred with facility ; that the possession may ac- 
company the right of property, so that purchasers may not be 
deceived, and false credit obtained, and besides it is said that 
they are of too perishable a nature to admit of limitations of 
future interests being created in them.^ And thei'efore, said the 
court, in the case of Smith v. Gates, the creation of tises and 
particular estates under various conditions und limitations, with 
reversions and remainders over upon personal property, cannot 
be favored ; but the court will lean against their creation either 
b>y deed or will, unless by words that are clear and definite. 

U Tuck. Com. 312, cited Kirkpatrick v. Davidson, 2 Kelly's Rep. 301. 

-Smith V. Gates, 2 Root, 534. Counsel, arguendo, Griggs v. DoJge, 
2 Day, 34- 2 Steph. Com. 75. 


{ 238. On tlie otlier side it is said : " That although the ge - 
nius of our law favors an equality, and is opposed to a perpetu ~ 
ity of property 5 it is not hostile to the creation of limited int er- 
ests. The same necessity for the creation of such restricted 
interests arising from the frailties of human nature, and the pe- 
culiar condition of familiesy may exist in regard to personal pro- 
perty as forcibly as in regard to real property, 

" The objection on account of the perishable nature of per- 
sonal estate, regards merely the value of the gift. The ul- 
terior donee can claim no more than the residue, after a rea- 
sonable use of the property. If the property becomes consum- 
ed by the use. no one can complain but the ulterior donee^ The 
community surely are not injured by its want of value. But 
there are various descriptions of personal property to which this 
idea cannot apply, and whose duration may extend far beyond 
a life estate. Such are money, stocks, family paintings, libra- 
ries, &c. But the inconveniences of discriminating are so ob- 
vious, that the court will adopt the principle generally, and will 
not say, that because in some cases the residuary interest may 
not be of any value, therefore it shall not be protected in any. 

" The interests of commerce, and the security of credit ought 
certainly to be regarded by a commercial people ; but it cannot 
be seriously pretended, that either can be injured by a few soli- 
tary cases of restricted interests in personal estate. The em- 
pire of commerce is too deeply rooted in the enterprise and ava- 
rice of our citizens — the means of its support are too great, and 
too widely diffused — to suffer the smallest impediment from such 
trifling considerations. It may contract the objects of plunder 
within a narrower circle ; it may screen the unguarded, intem- 
perate, or dissipated youth from the rapacity of sharpers ; the 
miser^may complain that, in a few cases, the property of the 
spendthrift is protected by law from his grasp ; but he that is 
satisfied with the acquisition of wealth hj honorable means, will 
not complain of it as a discouragement to commerce. 


" The possession of personal property is suffered, in many 
cases, to afford a credit where it is not owned : and the owner 
shall not be divested of his property, if the possession by the 
debtor was consistent with the broad principl'^s of good faith. 
The person in possession is, by means of this external evidence 
of property, enabled to practise iniquity. Some inconvenience 
may arise from this circumstance. The evil, hov/ever, would 
probably be small in this as it is in other cases, and can be 
avoided only by incurring a much greater one. 

'' The right of continuing one's dominion over property be- 
yond the grave, is certainly one of the most valuable rights de- 
rived from civil society. The possession of it is, at the same 
time, one of the strongest and most honorable incentives to in- 
dustry. It ought then to be as unlimited in its exercise, and 
should be suffered to embrace as many of the relations and con- 
tingencies of life, as may possibly consist with the welfare of 
community. A man's whole estate may be personal ; it may 
be indispensably necessary to guard against the prodigality of 
his son, incompetent to manage or retain for his children the 
property of their grand-father. He may have an aged relation 
for whose support he wishes to make provision ; and it may be 
indispensably requisite to guard the weakness or credulity of 
age from the imposition of officious knaves.'" 

§ 239. Without entering into this controversy, it may be ad- 
mitted that there are evils attendant upon these limitations ; but 
it is submitted that they are advantageous to society, and are 
demanded by its exigencies ; and that the evils address them- 
selves to the corrective^ and not to the extirpative wisdom of 
the Legislature. 

^Counsel arguendo Td^her v. Packwood, 2 Day, 63-5; see also Carr 
et als. V. Jeaunerett, 2 McCord, 92. 




§ 240. We have already stated tliat, anciently, a partial In- 
terest in chattels personal could not be created cither at law or 
in equity. We have also stated that subsequently it was held 
that the use of chattels personal might be given for a limited 
period ; and afterwards, that a direct gift of them for a limited 
period was but a gift of the use^ and so was good in that way. 

§ 241. Now, it has never been denied that chattels personal 
might be loaned gratuitously, or for hire, for a limited period ; 
and it is undeniable that the bailee, in such cases, is entitled to 
the use of the chattels bailed. Then what is the difference be- 
tween bailments and partial interests 1 There does not seem to 
be any difference in the nature of the interest of a general bailee 
and that of a quasi particular tenant of chattels personal, A 
gratuitous loan of a chattel, even for a specified time, is said to 
be revocable, ' whilst a gift of a chattel for a specified time is 
not revocable ; but if we consider that a gratuitous loan for a 
specified period is by construction but a quasi tenancy at will, 
we may conclude that the difference is rather of construction 
than otherwise. 

§ 242. The person to whom a chattel is loaned gratuitousTy 
or for hire, has a special property in it : the one who has it for 
hire, against the whole world: the one who has it gratuitously, 
against the whole world except the bailor. The person who has ' 

'Story's Bail. I 277. 


a partial interest in a chattel personal, has a special property 
in it against the world, except a quasi tenant at will ; and he, 
like a mere borrower, has it against the world except the general 

§ 243. A partial interest In chattels personal may he a quasi 
tenancy at will, for years, or for life, and there seems to be no 
principle which forbids a bailment even for life. 

§ 244. A bailment may be made by parol, but it cannot be 
made by will. A partial legal interest in prcesenti in chattels per- 
sonal, may be created by will, but cannot be created by parol, 
unless it be as a bailment. Thus, if A, for a consideration, de- 
liver a chattel to B, to be by him retained and used during his 
life, it would be an outrageous construction to hold that the ab- 
solute title passed, since but the use was intended to pass ; and 
therefore, if the creation of a partial interest be denied, a bail- 
ment must be admitted, and that would satisfy the contract. 
But, if the transfer v/ere without valuable consideration, then, 
unless it vrere held to be a partial interest, it ought to be held 
to be a mere gratuitous loan, and that would be a better con- 
struction than to hold that the absolute title passed by the de- 

§ 245. But without prosecuting the inquiry further, as to the 
difference and the resemblance of partial interests i7i prcesenti 
and general bailments, we may conclude that the general rights 
and liabilities resulting from each are and ought to be the same 
in consimili casu. 

§ 246. It is often a question, and sometimes a difficult one, 
to determine whether an interest in chattels personal is an abso- 
lute or a partial interest. This difficulty presents itself when 
the interest, as first created, is partial, and there is ground for 
contending that it is enlarged by the subsequent terms of the 
conveyance j and also, when the interest is apparently absolute 


at first, and yet tliere is ground for contending that it is cut 
down by matter subsequent. 

First, in regard to enlargement : In Bradley v. Mosby, a fa- 
ther, by deed, gave to bis daughter, the wife of E. M., the use 
of certain slaves during her life, and after her death to the heirs 
of hsr body, to the only proper use and behoof of such heirs, 
their executors, administrators and assigns ; and in case she 
should die without heir of her body, in that case to his son, R. 
W., his executors, administrators and assigns, warranting the 
said slaves to his said daughter, the heirs of her body, or his 
said son^ or to either of them, in manner and form above specifi- 
ed, as the case might happen. Roan, J. was of opinion that 
the daughter had an estate for life, with remainder to her eldest 
son and heir at law ; Pendleton, J. that she had an estate for 
life, with remainder to all her children equally; and Lyons, J. 
that she had an absolute estate, ^ and the last is clearly the 
better opinion. 

In Kay v. Connor, there was a gift by deed in the following 
words : " One negro boy, called Jacob, about seven or eight 
years old, and one negro girl going on six years, called Frankey, 
and all her future increase, I give to him (viz : Zachariah Gent) 
during his life, in trust for his heirs after his death." The court 
said : " To give any efficient meaning to these words, they must 
be construed as if they had read, ' I give to him for life with re- 
mainder to his heirs after his death.' The word 'heirs^ is a 
technical word, and is always construed to be a word of limita- 
tion and not of purchase, unless there be other controlling words, 
clearly showing that a contrary meaning was intended by its use. 
This, it is said is the case here ; but we cannot, upon legal prin- 
ciples, think so. There is another clause in the deed by which 
a tract of land is given to him in the following words : ' In con- 
sideration of the good will and afi'ection I bear towards my son, 

'3 Call. (50.) 


Zachariah Gent, I do give and make over to him, in trust, for 
the benefit of all the children he may have, one tract of land,' 
&c. Now in this clause, the word children is used, which is 
also a technical word, and is always construed to be a word of 
purchase, unless it be controlled by other words used so as to 
show that it was intended as a word of hmitation. It is argued 
that by the use of the word children in the first clause of the 
deed, it is fairly to be inferred that the donor, when he used the 
word heirs in the second, meant children. This inference is not 
legitimate ; it would be as fair to argue that by the use of the 
word heirs in the second clause, he meant heirs when he used 
the word children in the first. But the legal inference to be 
drawn from the use of these different words in the tvro clauses 
of the deed, is that the donor knew their legal meaning, and 
used them accordingly ; for why should he vary them ? And 
this inference is strengthened by the manner of using them : in 
the first clause, the gift is to all the children that he may have^ 
showing a disposition to provide for future children, and that in 
the second clause the gift is to heirs generally, showing no dis- 
position to provide for children, but to keep the property from 
descending otherwise than in the limitation. 

" We are therefore constrained, upon legal grounds of con- 
struction, to hold that the word heirs as used in the second 
clause of this deed, is a word of limitation, and not a word of 
purchase ; and that the Circuit Judge erred in holding that the 
rule in Shelley's case is not applicable to it."' 

§ 247. The conclusion in this case is doubtless correct, but 
it IS certainly erroneous to say that the rule in Shelley's case 
applies to personal property.^ The terms of the rule show that 
it is exclusively a rule of real property. 

'8 Hump. 633. 

nVms. ou Pec. Prop. 193; Chandless v. Price, 3 Ves. 99. 


§ 248. But there is a similar rule applicable to personalty. 
The grounds of the rule applicable to limitations of personal 
property are that "heirs" cannot take such property, because 
it cannot descend ; the word therefore requires construction, and 
being a technichal ^Yord of limitation — that is, of extension — 
that meaning is given to it in construing limitations of personal 
as well as of real property ; unless the party using it shows 
that he used it in another sense ; ^ and that he cannot do, except 
\)j showing that he did not intend to include all the heirs. ^ 

^ 249. The same rule applies to a gift to A for life, remain- 
der to the heirs of his body, and Tests in A the whole interest 

§ 250. The interest given in such case is, by construction; 
the absolute proper t}^, for an estate tail canrot be created in 
personalty ; nor can it be a fee conditional, and it must, there- 
fore, of necessity, be the absolute property, since it is not re- 
stricted to a less estate. 

Thus, where a testatrix gave her residuary real and personal 
estate upon trust, to apply the ren^s and profits for her son 
during his life, and afterwards for the heirs of his body, if any ; 
and, in default of such issue, then in trust for her grand-son, 
&c ; it was argued that the words "if any" had a peculiar 
force in this case, the son being a lunatic. But the Master of 
the Rolls held, that, even considering this as a mere disposition 
of personalty, the son took an absolute interest in the personal- 
ty, notwithstanding the words "if any" which must always be 
implied ;^ and he laid it down as clearly settled, that a bequest 
of personalty to a man for life, and afterwards to the heirs of 
his body, is an absolute bequest of personalty to the first taker. 

^Fearne's Rem. I 595. 

^Keyes on Rem. 46; see a case contra^ Price V Price, 5 Ala. 581. 

i^Etton V. Eason, 19 Ves. 73; 2 Fearue's Rem. ^ 595. 

IN PR^SEIfTI. 191 

And so in Britton v. Twining, the testator dcckred : Let 
2O7OOO/. out of the 22,000/. wliich I now have in the 3 per cent, 
stocks, be firmly fixed, and there to remain during the life of 
my wife, for her to receive the interest for the same, &c. And 
it is also my will and desire, that after the death of my wife, 
then the said 20,000/. which was settled upon her, be in the 
same manner firmly fixed upon the now infant boy William Cobb. 
I say, [ would have it so secured that he may only receive the 
interest of the same during his life^ and after his decease, to the 
heir male of his body, and so on in succession to the heir at 
law, male or female. But let it be noticed, that the principal 
20,000/. stock is never to be broken into, but only the interest 
to be received as aforesaid ; my intent being that there should 
always be the interest aforesaid to support the name of Cobb, 
as a private gentleman." The question was whether William 
Cobb took an absolute interest in the 20^000/. 5- or merely an in- 
terest for life. The Master of the Rolls said j He gives an es> 
late for life to William Cobb ; and he certainly meant that 
William Cobb should have no more than a life interest; but 
that is of no consequence, if he also meant that the heir" male 
should take in the character of heir. Now there is nothing to 
qualify the words "heir male^" or to show that they were not 
used in their strict technical sense. On the contrary, it is evi- 
dent that the testator conceived he could make a perpetual en- 
tail of the property, so as to make it pass from heir to heir in 
succession ; with a condition, however, wdiich he also conceived 
he could impose oi^ the power of disposition. The " heir male " 
is to take in the first instance, in the tame manner as the " hi^ir 
male or female " is afterwards to take ; for he says " to the 
heir male of his body, and so on in succession to the heir at law, 
male or female;" so that he has inheritance alike in view with 
regard to them all. 

" It would have been otherwise, if he had added the words " for 
life" to the words "heir male." Then the case would have 


been the same as that of White v. Collins; ^ where after an es- 
tate for life to F. M. there was a limitation to the " heir male 
of his body lawfully begotten during the term of his natural 
life." This was held to be no estate tail in F. M. because of 
the superadded words. It is in this particular, also, that the 
case (which was cited) of Leonard v. Willock wholly differs from 
the present. There, the testator had in express terms restrict- 
ed all the takers to estates for life, and the word "heirs" was 
inserted only for the purpose of designating the several persons 
who were to take such life estates. Here there is no such quali- 
fication. It is, indeed, declared, that the principal stock is 
never to be broken into, but only the interest to be received. 
But that is not sufficient to turn the " heirs " into tenants for 
life. It is equivalent to a declaration that no heir shall alien 
the estate, but only receive the rents and profits. But we are 
not to say that a testator has not given an estate tail, because 
he conceived he could perpetually restrain alienation. 

"Assuming that, in the case of a devise of land, this would 
amount to an estate tail, I apprehend it to be settled ever since 
the case of Lord Chatham v. Tothill in the House of Lords, ^ 
that whatever would directly or condructively constitute an es- 
tate tail in land, will pass an absolute interest in personal estate. 
There, the dividends only were given for life, and it was evident 
that the first taker was intended to have no more than a life in- 
terest ; but there was nothing to qualify the words " heirs of 
the body," and therefore the interest was held to be absolute in 
the first taker. 

In Bradley v. Piexoto, ^ the testator had intended a clause of 
forfeiture in case of any attempt at alienation, and had declared 
that the dividends were bequeathed to the different takers for 
their support during their lives ; yet, as he had at first used 

'iCcm. 289. »6 Bro. P. C. 450. '3 Ves. 324. 


words of limitation that were held to amount to a gift of the 
principal as well as the interest, the clause in restraint of alien - 
ation was considered as repugnant, and the whole fund was 
given to the first taker. 

I conceive that in this case William Cobb took an absolute 
iaterest in the fund, ^ 

So also in E wing v. Standifer et al., the bequest was: "I 
lend to mj daughter, Ljdia Standifer, during her natural life, 
five negroes, viz : Hanna, &c. These five negroes, with all 
their increase, I will to the lawful begotten heirs ofLydia Stan- 
difer, to be equally divided among them at her death;" and it 
was held that the interest given expressly to Lydia, was enlar- 
ged by implication to an absolute estate. ^ 

So in Machen v. Machen, the bequest was : I leave to Jane 
Machentwo negroes, Tamer and Prince, during her natural life j 
then to her bodily heirs. If there should be no heirs/' then 
over, &C.5 and it was held that the express estate for life was 
ealarged to an absolate estate. ^ 

So in Lenoir v. Rainey, a slave was conveyed by deed, in 
trust, " for the use of Martha Cargill, wife of Thomas Cargill^ 
during her natural life ; and after her death, said slave to be joint 
property of the heirs of the body of the said Martha Cargill;" 
and it was held that she took the absolute property. * 

§ 2.51. The case of Saundersoa and Wife v. Stearns, seems 
to be opposed to the cases cited, and indeed to the whole current 
of authority. In that case the bequest was : " I give and be- 
queath unto Eunice Saunderson, daughter, &c, ninety pounds 
out of my Bums at interest at my decease, to be kept in stock, 
ftnd the interest paid annually to her during her natural life ; 
and at her decease, to be equally divided among her heirs law- 
fully begotten of her boJy," It was held that Eunice was not 

'3 Mer, 116. 218 Ala. 400. =15 Ala. 373. * 15 Ala. 667, 


entitled to the principal, but to the interest only during her life. ^ 
It is clear that, if the subject of limitation had been real prc- 
perty, the words would bave created an entail under the statute 
de donis^ for words prescribing a distributive mode of taking 
do not make the heirs take by purchascj unless there be super- 
added words of limitation. 2 

\ 252. Cases illustrating that "heirs," or "heirs of the 
body,'^ are susceptible of explanation, and when explained, are 
not words of limitation, are found in the books- Thus, in Hodge- 
son et als. V. Bussey, where a term for years was conveyed to 
trustees in trust to permit Grace, the grantor's wife, to receive 
the rents and profits for her sole and separate use during the 
term, if he should so long live, and after her death to permit, 
the grantor to enjoy the profits thereof during the rem^ainder of 
the term, if he should so long live, and after his decease in trust 
for the heirs of the body of Grace by her husband, the grantor, 
begotten, theii' executors, administrators and assigns, and for 
default of such issue, remainder in trust for Henrietta Hodgeson 
during the residue of the term, if she should so long live, and 
after her decease, in trust for her two sons. The husband died, 
leaving the wife his survivor, and without issue. The bill was 
filed by the iimitees, who were to take in default of issue, and 
Lord Chancellor Hardwicke said : I am of opinion, that the 
whole term is not vested in Grace Bussey, and that heirs of the 
body are not words of limitation, but of purchase. 

'' The general run of cases makes this plain, notwithstanding 
they sound like words of limitation ; yet, upon circumstance?, 
and the intention of the parties, they may be construed words 
of purchase, and descriptive of the person who is to take. Ar- 
cher's case, 1 Co»" After citing and commenting upon several 
cases, and noticing an objection that the construction he was 

'6 Mass. 37, ^2 Jar. on Wills, (276) • Keyes on Rem. 35, 


giving obtained only upon wills and settlements, and asserting 
that the intention of the parties appearing on a deed always 
governs the court in construction, he further said : The present 
case is more strong to this purpose than any of the cited cases ; 
for I am of opinion, that it will be the same here upon the words, 
if she shall so long live, as if it had been expressly given her 
for life only; vide the case of King v. Mdllng, 1 Vent. 214, 

*' It was allowed at the bar, even in case of a freehold, that if 
the words for life vnly\\Vi^ been inserted, it must have pnt it 
out of doubt, notwithstanding heirs of the body had followed ; 
so here, if she shall so long live^ is an affirmative, implying ;i. 
negative at the same time, that if she did not live so long, the 
remainder of the term shall go over to the plaintiffs. 

" The reason the words heirs of the body vest an estate tail in 
the first taker, either in the limitation of a freehold or*' (an 
absolute interest) '' upon a term is, that it includes issue in infi- 

*' The second thing relied upon for the defendant is, the limit- 
ation over being too remote ; vide Higgins v. Dewier, 2 Yern. 
600; Clare and Clare, Cas. in Eq. in the time of Lord Talbot, 
21. Sabbarton v. Sabbarton, ditto 55 and 245. 

" I am of opinion, that if the words heirs of the body of Grace 
Bussey, are words of purchase, there is no limitation in tail, 
and that it is the same as if the limitation had run to the 2d, 
3d and 4th sons ; or if no son, then to the daughters ; for the 
intention was that it should vest in some particular person, and 
not go in succession from heir of the body to heir of the body, 
and to executors, &c., of the heir of the body, but it must vest 
in the first taker; as if it had been to the first son, his execu- 
tors, administrators, and assigns, for and during the residue of 
the said term, and fcr want of such issue, remainder to the plain- 
tiff's heirs. 

'^ Now the words for want of such issue, will be the same as if 


it had been said, for want of such son or such daughter ; foi 
the word such confines it to such issue as is meant by the words 
heirs of the body, and then it is not too remotQ a remainder, but 
brings it to the case of Gore v. Gore, 2 P. Wms. 28. 

" I am apprehensive it may be objected, that this is like the 
case of Higgins v. Derby, 1 Salk. 156, but the present differs 
greatly, for there it was said to be an attempt to entail a chattel^ 
and therefore construed to vest in the first son to prevent the 
inconvenience of a perpetuit}'-, 

" Here the words heirs of the body, must mean heir of the body 
living at the time of the death of Edward Bussey, (the grantor) 
or born in some reasonable time after, and that differs it from all 
the cases that have been cited." ^ 

§ 253. Two remarks may be made upon this case : First, 
that it was a case of a chattel real ; and in regard to that it 
must be said that in this particular there is no difference be- 
tween chattels real and personal.^ Second, that the latter part, 
though it may seem at first sight not to be pertinent to the pres- 
ent matter, is so, because it shows that "in default of such 
issue" does not have the effect to enlarge a life estate, if the 
issue be sons or daughters. 

§ 253a. In Dunn et al. v. Davis, the bequest was, " I give to 
my daughter, Mina, during her natural life, and at her death to 
her heirs or children, my negro man, Abram." A majority of 
the court held that heirs was explained by children, and that 
Mina took therefore but a life este.^ Sed qu(2re? 

So, in Crawford v. Trotter, where the bequest was to a fe- 
male and her heirs, (say children) it was held that she took but 
a life estate.* 

So, in Evans v. Wells, James Jordan, by deed, declared : — 

^2 Atk. (89.) 2Beauclerk v. Dormer, Id, 312. 

'12 Ala. 135. *4Mad. 3G1. 



^' In consideration of the love and regard tnat I have for my 
daughter, Martha Evans, I have loaned to her the negroes afore- 
said, for her support and no other, except she, the said Martha 5 
should have issue or heirs of her body ; and in that case, I loan 
said negroes to her and her heirs for their mutual support. And 
if said negroes should remain in possession of said Martha until 
her death, and she should have legal heirs of her body, I givo 
said negroes with their increase to them.-' It was held, that 
the daughter took but for life, that heirs of her body meant 
children, and that they took by way of remainder after her 
death.* Sed queer e? 

§ 254. Again : This enlargement takes place, as a general 
rule, in all those cases in which there is a gift for life, with lim- 
itation over upon what is construed to be an indefinite failure of 
issue, some of which were cited when we were examining the 
doctrine of remoteness. But we may here take the case of Sim- 
mons V. Simmons as a case strongly in point. In that case the 
testator gave all his real and personal property to his daughter 
for her separate use during her life : ''at her decease she shall 
be at liberty to will the same to her issue as she may think fit ; 
but in case of her dying without issue, I wish the property to 
go to my dear brother and sister, Gwin Simmons and Ann Sim- 
mons, for their natural lives, share and share alike. In the 
event of my brother Gwin's death prior to the death of my 
dausrhter, then to the children of the said Gwin Simmons, share 
and share alike." The Vice-Chancellor said: " That he had 
no doubt that Elizabeth Simmons [the daughter] took an estate 
tail in the lands of inheritance, and an absolute interest in the 
personalty which was disposed of in the same clause. - 

The case of Machell v. Weeding may also be stated. In that 
case, the testator gave real and personal property to his "wife 

'7 Hump. 559. -S Sim. 22. 


for life.'^ and at her decease, to his son Joseph for life ; but if 
Joseph should die without issue, not leaving any children, then 
he directed that the lands should be sold and the proceeds divi- 
ded among his three other sons, and that if any cf them should 
die before Joseph, then their shares should be divided amongst 
their children. The question was, what estate Joseph had in 
the real property, and the Vice-Chancellor said : The words 
'•• die without issue, not leaving any children," may be taken 
either as marking out one event or two. Suppose they are 
taken as referring to two events ; then they must be read thus : 
''die without issue and not leaving any children ;" and then it 
is perfectly manifest that the testator did not mean that the es- 
tate should go over as long as any issue of the first taker should 
be in existence. But, if the words are to be considered as re- 
ferring to one event onij', they must, in that case, be taken to 
refer to the greater event; that is, the dying without issue, 
'i he not leaving any child, is only a certain mode of dying with- 
out leaving issue, Joseph might die without leaving children, 
but not without leaving issue ; as, for instance, if he wei'e to 
have an only child, and that child were to die in his lifetime, 
leaving issue. I cannot but think that these words must be 
taken as descriptive of dying without issue : and I consider it 
to be a settled point, that, whether an estate be given in fee, or 
for life, or generally, without any particular limit as to its dura- 
tion, if it be followed by a devise over in case of the devisee 
dying without issue, the devisee will take an estate tail.'" 

§ 255. But this enlargement is confined by the proposition to 
cases in which the gift over is construed to be upon an indefinite, 
failure of issue. Therefore it is, that in all cases in which the 
failure of issue is confined to the death of the first taker expressl}', 
by iraplicatioii, or by statute, the enlargement cannot take place. 

'8 Sim. 4. 


TLus in the class of cases in which a gift over " in default of 
such issue," is construed to he a default of children ; as in case 
of a gift to A for life, remainder to his children, and in defaxdt 
of such issue, to B.^ So in case the gift to A for life, remain- 
der to her children and their heirs, and in default of such issue, 
then to B, the express gift to A is not enlarged.^ See what 
can be made of Robinson v. Robinson.^ 

In Hay v. The Earl of Coventry and others, where real es- 
tate was limited by will to A for life, remainder to his first and 
other sons in tail male, remainder '^ to the use of all and every 
the daughters, &c., as tenants in common, and in default of such 
issue, to the use of the right heirs of the devisor," and A had 
no son, but had one daughter who survived him ; and after her 
death, it was held that she took but an estate for life. Lord 
Kenyon said : '' If indeed the word ' such ' had not been intro- 
duced in this clause, we might perhaps have said that as ' issue ' 
is genus generallissimum, it should include all the progeny. But 
here the word ' such ' is relative, and restrains the words which 
accompany it." He cites cases and argues in support of the 
ruling. ^ 

§ 256. Thus, also, in the divers other cases in which the re- 
strictive construction has been held, which h-ave been mentioned 
in a previous chapter. 

§ 257. But let us take a few cases as illustrative of the gen- 
eral position. In Andre v. Ward,^ and in Green v. Ward,^ a 
testator bequeathed a sum of stock to trusteess upon trust to 
pay the interest to his son during life, with a direction that if he 
married a woman with a fortune of a specified amount, to settle 

» Sheffield v. Lord Orrery et als., 3 Atk. 2<S2. 

^Doe v. Perrin, T. R. 484, and cases cited for plff. on appeal, Mal- 
colm v. Taylor, 2 Rus. & My. 416. ^l Bur. 38 

43 Term Rep. (83.) ^1 Rus. 260. «i Rus. 262. 


the fund upon her and the issue of such marriage ; hut in case 
of the son's decease leaving no issue of his hodj, the stock was 
given over to various persons ; and the testator disposed of the 
residue of his estate. The son married a woman who had not 
the fortune required by the will, and died, leaving issue of that 
marriage, and it was held that the son's interest was not enlarge 
ed by implication. 

In Ranelagh v. Ranelagh, there was a gift of a sum of money 
to each of four children, for life, the interest thereof at 5 per 
cent, to be paid to each until a certain time, with this proviso : 
In case of the demise of any of the above parties without legiti- 
mate issue, their, his, or her proportions to be equally divided 
amongst the survivors. It was held by the Master of the Rolls 
that the interests of the children were not enlarged by impli- 
cation. ^ 

In Goymour v. Pigge, there was a devise to A for life, with 
remainder to her first child and his or her heirs ; but if such 
child should die under the age of twenty-one years without leav- 
ing any issue, then in like manner to the second, third, and every 
other child of A ; regard being had to their seniority, and to 
their respective deaths under age w^ithout leaving lawful issue ; 
for, in case of issue, it was the testator's will that they should 
inherit the estate, and he thereby gave the same to him or her, 
and to his or her heirs accordingly. But in case A died without 
having issue of her body, or having issue, such issue should die 
imder the age of twenty-one years without leaving issue lawfully 
to be begotten as aforesaid, then he devised the estate to B for 
life, and after her death to C in fee. A never had any issue, 
and it was held that she took but an estate for life.^ 

In that case it was laid down by counsel as a general rule, 
'^ that where you find a hmitation to a class of issue which does 

'2 My. & Keene, 441. 27 geav. 474, 


not enable all tlie issue to take, and there is a gift over upon a 
general failure of issue, an estate tail is created in the parent." 

In Woodley v. Findlay et al., the bequest was : "I lend to 
Mary Foster one negro girl, called little Dinah, during her na- 
tural life ; and at her death, I give and bequeath the said negro 
girl, little Dinah, and her increase, to the lawful issue of her 
body, that may then be living, to them and each of them, share 
and share alike, their heirs and assigns forever ; but should the 
said Mary die without lawful issue, then to go to her sisters, 
share and share alike.'' It was held that Mary took but an 
estate for life. * This decision is in accordance with the autho- 
rities. It does not depend, as seems to have been thought in 
Ewing V. Standifer et aL,^ upon the distinction between " issue " 
and " heirs," for had the latter instead of the former word been 
used, the result would have been the same.^ If the rule in 
Shelley's case would not be applied to a like limitation of real 
property, it will be admitted that the position taken is correct ; 
for the rule applicable to personal property is, at least, no strong- 
er than the rule in Shelley's case. That the rule would not be 
applied, appears from the proposition laid down by Mr. Smith, 
that its application is prevented " by prescribing for the heirs 
general or special, a distributive mode of taking, and also su- 
peradding words of limitation : as to A for life, remainder to 
the heirs of his body, as well males as females, as tenants in 
common, or share and share alike, or without any respect to be 
had in regard to seniority of age, or priority of birth, and their 
heirs and assigns forever."* 

The case, however, of Doe v. Collis, is not so strong a case 
as that of Woodley v. Findlay et al., and yet the same con- 

i9Aia. 7l6. -18 Ala. 403. 

3Bell & Wife V. Hogan, 1 Stew. 536; Dotl v. Wilson, 1 Bay. 452. 

*2 Fearne's Rem., § 488— see Right v. Creber, 5 Bar. & Cress. 866, 
Holroyd, J. 


struction prevailed. In that case there was a devise to the wife 
for life, remainder 'Ho his two daughters, Eleanor Newsora, and 
Susannah, the wife of William Head, to he equally divided be- 
tween them, not as joint-tenants, hut as tenants in common, viz : 
the one moiety, or half part thereof, to his daughter, Eleanor 
Newsom, and her heirs forever ; and the other moiety to his 
daughter Susannah, during the time of her natural life; and af- 
ter her decease, to the issue of her body, lawfully begotten, and 
their heirs forever. It was held that Susannah took but a life 

But the other point presented by Woodley v. Findlay et nl. 
is the point about which we are now interested, and that is in 
reo-ard to the effect of the limitation over, upon an indefinite 
failure of issue. In that case, the limitatioFx over did not en- 
large the estate for life, and the reason is, that the issue were 
entitled to take by purchase, and the interest given to them was 
as large as that which would have arisen by implication, and 
there was, therefore, no room for an implication. Had the lim- 
itation to the issue been special, that is, to the sons, or to the 
daughters, the gift over upon ^' dying without issue" would not 
have enlarged the estate for life, for the dying without issue 
would have been construed to be a dying without the special is- 
sue named, and this accords in the end with realty. 

§ 258. In cases of real property, when there is a devise to 
issue, and they are construed to take an estate tail by purchases 
and there is a gift over in default of issue of the person to T;hom 
a life estate is given, Mr. Smith holds it to be the better opin- 
ion, that the ancestor in such case takes an estate tail in remain- 
der after the issue. ^ But this may well be doubted, when all 
his issue may take by purchase, since they would seem to ex- 
haust the limitation and leave not the shghtest ground for an 

'4 Durii. & East. (294.) 
*2Fearne's Rem, g 571. 


implication; and Ginger d. v. White' is an authority against it. 
When, however, the issue is special, and the gift over is in de- 
fault of issue general^ then the construction is reasonable, and is 
indeed necessary; since otherwise the estate could not pass to 
all the issue for whom it was intended. But this construction 
cannot appty to personal property, for words creating an estate 
tail general or special in real property pass the absolute pro- 
perty in personalty, and the rule in regard to realty is, that 
when the issue in such case take a fee by purchase, no estate 
tail can be raised by implication in remainder*^ 

§ 259. It is to be observed that, in deeds at common law, 
' heirs,' and perhaps ' heir, '(a) are the only words of inheritance* 
they are also words of limitation in a devise ; but in a devise in- 
heritances may be created by any words which show intention to 
create them. Hence it is, that in a devise "issue," "son," &c, 
though prima facie words of purchase, are construed to be words 
of limitation, or of purchase, as will best comply with the testa- 
tor's intention. And so is the construction both of deeds and 
wills of chattels. The diiference, then, between "heirs," &c. 
and "issue," "sons," &c., is that "heirs," &c. have a tech- 
lical meaning, which will be given to them, unless that meaning 
be controlled, but issue, ^' song," &c., are not technical words of 
limitation, and will not be construed as such, unless it is re- 
quired by the testator's, or grantor's intention.^ 

259, a. There is a difference, however. In the construction of 
" heir" and " heirs," which deserves a notice here. If there be 
a devise to A for life, with remainder to his heirs for life, the 
words, " for life," are held to be of no force "syhatever ; but if 
the gift be to A for life, with remainder to his heir for life, A 

^3 VVilles, 348. 22 Fearne's Rem., I 574. 

(a) But see 4 Kent's Com. 5, N. (a). 

3See Malcom v. Taylor, 2 Rus.&M. 416; Kay v. Connor, 8 Hump. 624, 


takes but an estate for life, and the person who happens to be heir 
at his death takes but an estate for life also. So, if there be a de- 
vise to A for life, remainder to his heirs and their heirs, the words, 
" and their heirs," are rejected, and A takes a fee, and his heirs 
take by descent; but if the gift be to A for life, remainder to his 
heir and the heirs of such heir, A takes but an estate for life, and 
the person who happens to be his heir at his death, takes a fee by 
purchase. Note, however, that if there be a gift to A for life, 
with remainder to his heirs and the heirs female of their bodies, 
or other words which limit to the heirs of A an estate of a dif- 
ferent nature, then A takes but an estate for life, and the taking 
at his death is by purchase. * The person who is heir at the 
death of A will take, and should there be a failure of heirs fe- 
male of his body, then the person who is next of kin of A will 
take to him and his heirs female, and so on from next kin to next 
kin, and this, according to the doctrine of fictitious descent, as 
laid down in Mandevile's case. The doctrine of Mandevile''? 
case, however, does not apply to personalty. 

259, h. And in regard to issue, it may be here laid down., 
whenever there is a gift " to A and his issue," or " to A for life, 
with remainder to his issue," or other like limitations which in a 
devise of land would create an estate tail under the statute de 
donis, that always in such cases A takes the absolute interest, 
and the issue take by representation. ^ 

§ 260. But again ; this enlargement by implication may take 
place by the use of the words, '^ executors or administrators," or 
"executors, adn.inistrators, and assigns." Thus, if there be a 
gift to A for life, and after his death to his executors and ad- 
ministrators, A will be entitled absolutely. No enlargement, 
however, will take place in such a case, when it appears clearly 
to be the intention of the donor that the administrators or exe- 

» See Keyes' Essay on Rem. 34, 46-7. ^2 Fearne's Rem. (Sm.)|597. 


cutors sliall take beneficially. As in Wallis v. Taylor, where a 
testatrix gave a sum of stock to trustees for the separate use of 
her daughter for life, and after her death, in trust for her exe- 
cutors or administrators absolutely, it was held that her admin- 
istrator was entitled to it in his own right. ' 

The case of Grafftey v. Humpage furnishes an illustration 
and is an authority for the position above taken in regard to the 
words, '' executors, administrators, and assigns." In that case 
by a marriage settlement, certain specified property of the wife 
was settled, with an ultimate limitation, in default of children, 
to her next of kin, and the husband covenanted to settle any 
property which his wife, or he in her right, should thereafter, 
during the coverture, succeed to the possession of, or acquire, 
on like trusts. At the time of the marriage, a sum of money, 
which was not mentioned in the settlement, stood settled, in 
trust, by her father's will, for the wife for life, with remainder 
to her children, with remainder as she should appoint, and in 
default thereof, " to her executors, administrators, and assigns." 
The husband survived the wife, there were no children, and the 
wife made no appointment. The husband having died also, it was 
held that the next of kin of the wife, and not the representatives 
of the husband, were entitled to the fund. And the Master of 
the Rolls said : Cases have occurred, in which to support the 
plain intent, the words, " personal representatives," or " exe- 
cutors and administrators," have been construed to mean nest 
of kin(a); but the words, "executors, administrators, and as- 
signs," do not appear to me to admit of this interpretation; and 
I think that, subject to the prior limitations and the power of 
disposition, the words of the will (the father's) gave an absolute 
interest to Mrs. Humpage; and if there had been no settlement, 

18 Sim. 241. 

(a) III a note to the case it is said: ''■Legal or personal reprcsev.taiives 
may nieaii next of kni, but executors or administrators cannot,"— 
Lord Lyiidhurst, Daniel v. Dudley, 1 Phil. G, 


wouldj in the events which have happened, have enabled her 
husband, as her administrator, to take the fund."* 

§ 261. Bttt the question of enlargement is not confined to the 
cases stated ; for it may arise in as many ways as an intention 
to give a larger interest may be gathered from language. 

Thus in Bird v. Hunsdon, John Hunsdon bequeathed the resi- 
due of his personal estate to be invested in government security, 
and proceeded thus : " The interest to be paid duly to bring up 
and educate Mary Morris, daughter of widow Mary Morris, and 
Samuel Seabrook, her uncle, to be her guardian ; and the said 
Mary Morris to have the said interest to maintain her as long as 
she lives single, and no child ; and when it shall please God to 
call her, that money shall come to my brother's and sister's chil- 
dren. All share and share alike, and their uncle Peter to be 
their guardian." Mary Morris, the daughter, attained twenty- 
one and married John Bird, and had a son, and the question was 
as to the quantity of her interest. The Master of the Rolls held 
that she took a life interest by implication. ^ Perhaps a better 
construction would have been, that the testator's representatives 
were entitled to the interest from the legatee's marriage to her 
death. And so in Smith v. Gates, the testator bequeathed a 
residue to his wife, "to be used and improved to her during her 
widowhood," and there was no limitation over. The Court said: 
The words, to use and improve during, her widowhood ; or bo 
long as she remains my widow, as they are commonly used in 
wills, are obviously intended to prevent the estate from going 
into the hands of a stranger whom the widow might think fit to 
marry ; a gift then to use and improve during widowhood, if 
widowhood continues through life, may fairly be construed U-- 
mean the same as a gift to use and improve generally; but a gift 
so to use and improve a personal chattel, is a gift of that chattel; 

^l Beaver, 47. ^2 Swans. 362. 


and it is for this plain reason, that the very existence of the 
of the thing is exhausted and annihilated in the use and im- 
provement." ' But this case seems to be rather too strong ; and 
so, also, does the case in Pickering, where the gift was to a wo- 
man for her use and disposal during her life, with a gift over of 
what shall remain at her death^ and it; was held that she took 

§ 262. We come now to cases in which an apparent absolute 
interest is cut down to a partial interest. It matters not whether 
the interest appears to be absolute by express words or by im- 
plication, it will be cut down by construction when the intention 
sufficiently appears. Thus, if the gift be to A indefinitely, he 
takes the absolute property; but if it be added, "^^ after his death 
then to B," the absolute property which would otherwise have 
passed to A, is cut down by the limitation to B. and is but a lift 
interest. So, if the gift be "to A absolutely," or " to A and 
his heirs forever," or to A by other like words, or " to A," with- 
out miOre, and there be a limitation over to B, in an event that 
is lawful and not too remote, and the event happen, A's interest 
is cut down to a partial interest, though till then he has a quasi 
qualified fee. 

One of the strongest illustrations of an apparent absolute 
interest being cut down by implication, is found in the case of 
Smith V. Bell. In that case the following clause of a will was 
presented for construction : " I give to my wife, Elizabeth Good- 
win, all my personal estate whatsoever and wheresoever, and of 
what nature, kind, and quality soever, after paying my debts, 
legacies, and funeral expenses ; which personal estate I give and 
bequeath unto my said wife, Elizabeth Goodwin, to and for her 
cwn use and benefit and disposal absolutely ; the remainder of 
gaid estate, after her decease^ to be for the use of the said Jesse 

J 2 Root, 532, nitmis el al. v. Knapp €t ai, 21 Pick, 412. 


Goodwjn : and I do hereby constitute and appoint my said wife 
Elizabeth Goodwin, sole executrix of this my last will and tes- 
tament." Mr. Chief Justice Marshall delivered the opinion of 
the court, holding that the wife took but a life interest in the 
slaves about which the suit was, and that she had no other power 
of disposal than such as was incident to such an interest. ^ 

Admitting that the wife took but a life estate, this objection, 
upon principle, may be alleged against the decision, that it de- 
nied to the wife the power of disposition as fully as was required 
by the will, and as was consistent with the limitation over. The 
reason given for so restricting her power of disposal is, that a 
gift over of what remains at the death of a prior taker, to whom 
a power of disposal is given, is void for uncertainty. But we 
have already seen that such a principle cannot be maintained ; 
and therefore the correct construction seems to be, if the wife 
took an interest for life, that she took with it an absolute power 
of disposal. 

Another illustration of an apparent absolute interest being 
cut down by implication is furnished by the case of Madden v. 
Madden's ex'rs. In that case the testator bequeathed as fol- 
lows : "I desire the moveable property of every description, 
after the death of my wife, should be sold, and the proceeds 
thereof equally divided among my four daughters — Nancy, Su- 
san, Jane and Elizabeth: after all my just debts and legacies 
are paid, my desire is that my moveable property shall be at the 
entire disposal of my wife, Jane Madden : on her decease the 
same to be disposed of as above mentioned." It was held that 
the wife took only a life interest in such of the moveables as 
were capable of being returned in kind, and therefore her gift of 
a slave so held to one of the daughters, passed only the life in- 
terest of the wife.^ 

Another illustration is found in Fiinn v. Jenkins. In that 

'6 Peters, 68. ^Leigh, 377. 

IN PR-^SENTI. 209 

case the testator declared: "I, Robert Flinn, of &c., carver 
and gilder, do will the whole property belonging to me, not named 
in this my last will, to my wife, Sarah Flinn, after her pay- 
ing the following legacies: that is to say — -the house No. 3 Sta- 
cey street, I give to my son, Robert Henry Flinn ; the house 
No. 2 Stacey street, I give to my son, Henry Fiinn, for their 
lives, and then to be equally divided among their children. My 
son Henry Flinn is indebted to me money lent, ^2000 ; the interest 
of which he is to pay to my wife, Sarah Flinn, as long as she lives , 

" The residue of my remaining property in the following man- 
ner, except the household furniture, plate, and wearing apparel, 
trinkets, &c., to be at her own disposal, and the remaining pro- 
perty to be equally divided between my two sons for their lives 
only, and then to be equally divided among their children, when 
of age." The Vice-Chancellor was of opinion that the widow 
was entitled to the residue for her life only. ^ 

In Stone v, Maule, the testator bequeathed the residue of his 
personal estate to H. Doddridge, for his own use and benefit ; 
and in case H. Doddridge should happen to die in his lifetime^ 
or afterwards, without having any child or children, then the 
testator gave the residue to his nephew and nieces — -John, Eli- 
zabeth, and Mary Stone. The Vice-Chancellor said : It has 
been assumed in the argument, that the words ^^VY'ithout having 
any child or children,'' are to be taken as synonymous with the 
expression, " without issue." But why am I to put a construc- 
tion upon those words which they do not strictly bear, for the 
purpose of defeating the intention of the testator % The question 
is not what is the effect of words creating an estate tail, but of 
words making a gift over, [t appears to me that I should de- 
feat the testator's intention, in this case, if I did not hold that 
the gift over took effect on the death of H. Doddridge.^ 

1 Collyer, (365.) 22 sim. (490.) 



But in Facon v. Cosby, tlie testator declared : I hereby re- 
voke all wills,, testaments, and codicils that I may have made.^ 
and leave my entire fortune equally divided between my two 
daughters ; the part that I may have already given to my young- 
est being considered to form part of her moiety. I likewise di- 
rect that the portion of my said youngest daughter, Marie, shall 
devolve, in case of her dying ivithout children, to iwi/ eldest 
daughter Emify and her child? en'^^ At the date of the wilL 
Marie was married, and having survived her father, died with- 
out ever having had a child; Emily had two children at the 
date of the will. Knight Bruce, V, C. said that, according to 
the whole course of the decisions, Mrs. Bacon (Marie) would 
have been held to have taken an estate tail in the realty, and an 
absolute interest in the personalty, but for the words " and her 
children '^ occurring at the end of the will, coupled with the fact 
that Emily had children at the date of the will. This, howev- 
er, was much too weak and unsubstantial a; reason to- alter so 
g>ettled a construction. 

In the course of the argmment his hcnor said,- that if the gift 
over had been to a stranger, or if the words " to her children ^^ 
had been omitted, he thought that the question could not have 
been argued. * 

§ 263. The case of Walker v. Watts strongly illustrates the 
doctrine that an interest may be cut down by implication, Ib 
that case George Walker, by his will, directed that his wife 
should have liberty to occupy, hold and enjoy the dwelling house 
at Liverpool he then lived in, for one twelvemonth ; provided 
she continued so long in Liverpool. '^ Item, I order and direct 
my executors to pay and allow unto my said wife one guinea 
weekly, and every week during her stay in Liverpool^ for and 
towards household expenses." The widow received a guinea a 

'3 Eng. L. & Eq. Rep. 186. 


week for a year after the testator's death ; and continuing to 
reside in Liverpool, filed her bill claiming to be entitled to a 
guinea a week as long as she should reside there. But Lord 
Loughborough dismissed the bill, observing that it would be 
giving a vast effect to the words, to suppose he meant her to 
have a guinea a week during her life. He supposed her to live 
a year in Liverpool, and gives her a guinea a week towards 
household expenses. * 

§ 264, We have seen that it is laid down that courts lean 
against the construction that an interest in chattels is a partial 
interest ; but we then denied that the rule extends to cases iu 
which repugnancy would be the result of that leaning. Subject, 
however, to that qualification there can be no doubt that such is 
the rule. Under this general rule comes, perhaps, the doctrine 
laid down by Lord Alvanley in Harrison v. Foreman. In that 
case there was a bequest to A for life ; and after her decease, 
to B and C in equal shares ; and in case of the death of either 
of them in the lifetime of A, the whole was bequeathed to the 
survivor of them living at her death. The testator died; then 
B and C died, and then A died. The question was between the 
administratrix of B and C, and the testator's residuary legatees. 
His honor said, " that where there are clear words of gift, giv- 
ing a vested interest to parties, the court will never permit the 
absolute gift to be defeated, unless it is perfectly clear, that the 
very case has happened, in which it is declared that the interest 
shall not arise." So he declared, " There is a vested interest ; 
and the contingency upon which it is to be divested, never hap-^ 
pened : the vested interest therefore remains, as if that contin- 
gency had never been annexed to it."- 

So in Scott V. Price, after bequests to sons and dauo-hters. 
the testator declared : It is further my will, that if it should 

'3 Ves. 132; stated 2 Rop. Leg. 328. 25 y^,g_ ^^07) 


please God that any or either of mj before-mentioned sons or 
daughters should die before he, she, or they attain the age of 
twenty-one years, unmarried, or without lawful issue, that then, 
or in either case, the bequest or bequests herein before made to 
any or either of them shall devolve to the survivors or survivor. 

One of the daughters attained twenty-one and died, without 
having had issue, and it was held that the event upon which her 
interest was to be cut down had not happened, ' 

So also in Keates v. Burton, Mr. Burton bequeathed 2000/, 
to his natural son, James Christie ; " but if his executors should 
think it more for the advantage of James to have 2000/. placed 
at interest, and to pay him interest for life, as it became due, 
or otherwise in such proportions, and at such times, manner and 
form as they in their discretion should think fit, they were au- 
thorized and empowered to place the money at interest, as there- 
in mentioned, in their joint names, or in the names of the sur- 
vivors, and directed to pay to him the interest in manner afore- 
said during his life," with limitations over. One executor died, 
the others renounced probate, and the discretionary authority 
thus becoming impossible of execution, it was held that James's 
interest in the 2000/. was not cut down, but was absolute. ^ 

The cases of Carr et als. v. Jeannerett, and Carr et als. v. 
Green, demands a notice here, not only because they are appo- 
site to the matter now under consideration, but also because two 
learned tribunals came to different conclusions upon the same 
facts. The facts were these: William Wilson made a will 
which contained the following clause : " The rest and residue of 
my estate, both real and personal, to be equally divided between 
my two grand-sons, Wilson and Thomas, and delivered to them 
at the age of twenty-one years ; but should they die leaving no 
lawful issue, in that case I give and bequeath the whole of my 

'2 Serg. aiid Rawle, 59^ see also I Eop, on Leg. 414 et seq. 
M4 Vfcs. 4343 stated t Rop. Leg. 416. 



estate, botli real and personal, to Richard, Thomas and Marj 
Godfrey, Rebecca Potts and Thomas Ballow, to be equally di- 
vided between them." Wilson, the grandson, died under age, 
and without leaving issue ; Thomas, the grandson, was also dead, 
but he arrived at twenty-one years of age, and left issue. 

The Chancery Court of Appeals in Carr et als. v. Green, 
held that the grandsons took but estates for life ; that, upon the 
death of Wilson, Thomas took a cross remainder by implication, 
and that upon his death, his children took the estate, by virtue 
of the limitation, as remainder-men, and not as the personal re- 
presentatives of Thomas. * And this conclusion was reached 
through much learning and through many cases. 

The Court of Appeals at law, however, in the other case, 
held that Thomas, in the event, took an absolute interest in the 
whole property, and that his children therefore took by repre- 
sentation from him. According to the opinion, the whole proper- 
ty passed to Wilson and Thomas, and each had an executory 
limitation engrafted upon the otherwise absolute interest of the 
other.- And this seems very clearly to be the better opinion. 

§ 265. In regard to partial interests with powers of appoint- 
ment or appropriation, perhaps sufficient has been said in the 
preceding chapter. It may be added here, however, that if a 
party has a general power of disposition, with or without a par- 
tial interest, and exercise that poiver, the appointee takes, sub- 
ject to the debts of the p^rty exercising the power; but if the 
party does not execute or attempt to execute the power, credit- 
ors have no claim whatever. A Court of Equity will sometimes 
aid the defective execution of a power, but never supply the 
total want of it. ^ 

§ 265a. As to the rights, liabilities, and remedies of parties 
having partial interests in pr{Bsenti, we shall find occasion to 
discuss them in a subsequent chapter. 

^2 McCord, 75. =2 id. 66. 34 Kent's Com. S39-341. 




§ 266. It lias been said tliat chattels personal are subject to 
tbe same modifications of future interest as real property is. 
Now, every future interest in real property is either a reversion, 
a remainder, a conditional limitation, a springing interest, or an 
augmentative limitation. 

§ 267. A reversionary interest in chattels personal, like are- 
version, cannot be created, but arises by mere operation of law, 
and like a reversion it is also an interest that is to return into 
[Obsession upon the expiration of a prior interest; but it differs 
in other respects from a reversion, and therefore it is properly 
called a quasi reversion. 

§ 268. A remainder in chattels personal is like a similar in- 
terest in real property in this, that they are both limited to take 
effect upon the regular expiration of a prior interest ; but they 
differ in other respects. For example : a remainder, strictly so 
called, when contingent, is destroyed by the destruction of the 
particular estate, but a like interest in chattels personal is in- 
dependent of the preceding interest, and may take effect, not- 
withstanding the destruction or expiration of the prior interest 
before the happening of the contingency. ' Thus, if there be a 

^2 Fearne's Rem. ^ 168-1685; Williams' Per. Prop. (194) ; 4 Kent's 
Com. (269-70) ;. Barnett v, Roberts, 4 Dev. 8l ; Jones's ex'rs v. Hoskiusj 
18 Ala. 489— contra, dictum Price v. Price, 5 Ala. 582. 



gift; to A for life, and after his death to the first son of B who 
shall attain twentj-one jears of age, and A die before any son 
of B attain that age, it will not prevent the limitation from ta- 
king effect at a future time ; not, indeed, iis a remainder, but 
as a springing interest. 

^ 269. The cases eited by counsel in Griggs v. Dodge, ^ from 
the first of Dyer, ^a and 74a-, notwithstanding the editor's opin- 
ion that the iirst " as it stands is law," have both long since 
been departed from ; and even if they had not, they were cases 
of conditional limitations, and -do not affect the present pointo 

§ 2T0. There is, it is believed, but one exception to the rule 
that a prior donee cannot prevent a subsequent limitation, by 
way of remainder, of chattels personal from taking effect, in 
the event upon which it is limited, and that is an exception sui 
generis. That exception is found in Jones v. Zollicoffer.^ It 
is stated by Browne arguendo^ and is sustained by the court. 
The exception is where an executor, or of course an administra- 
tor cum testamento annexo, is the prior donee, and without elect- 
ing to take as legatee, and without, we may add, assenting to 
the subsequent limitation, sells the property as the representa- 
tive of the testator, 

4 271. These limitations by way of remainder in chattels 
personal have, therefore, been very properly termed quasi re- 
mainders. They do not differ in their nature from springing 

§ 272. Conditional limitations of chattels personal do not differ 
in their nature from like interests in real property, 

§ 272a. Springing interests in chattels personal do not differ in 
nature from like interests in realty. 

^2 Day^ 35-36. 

^Taylor. (N. Car.) 212 j see Hailes v. Ingram, 6 Iredell's Eq. 477, 


§ 273. Augmentative limitations of real property differ, how- 
ever, very materially from like limitations of personalty. Such 
limitations of realty require that the first estate remain unalien- 
ed, and unchanged in quality, until the event happens upon 
which it is to he augmented. Thus, if an estate for years in 
land be conveyed by deed to A, and upon his marriage, that 
then he shall have the fee, the latter is an augmentative limita- 
tion which will be defeated by A's alienation of his term. But 
it is not so in regard to chattels personal, for such limitations 
take effect as, and are, indeed, springing interests. 

2T3a. It may be mentioned here, that limitations by way of 
augmentation are opposed to what are called diminuent limita- 
tions. Thus, if a chattel be limited to A for life, or forever, 
but if he pay not fifty dollars withiii one year, that then he shall 
have it but for three years, and he pay not the fifty dollars 
within the time, then is his interest reduced to the three yearSj. 
and, as Lord Coke says of a like limitation of realty, was, in 
contemplation of law, never any greater interest. 

2736. Every future interest in chattels personal, then, must 
be either a quasi reversion, a quasi remainder, a conditional 
limitation, or a springing interest. 

§ 274. We come now to the consideration of quasi reversions. 
Personal property is said to be essentially the subject of abso- 
lute property ; and it is therefore denied that, at law, there can 
be any such thing as a reversion in such property. Thus, says 
Mr. Williams, if any chattel, whether real or personal, be as- 
signed to A for his life, A will at once become entitled in law 
to the whole. By the assignment, he adds, the property in the 
chattel passes to him, and the law knows nothing of a reversion 
remaining in the assignor. But he admits that this doctrine has 
no place in the modern Court of Chancery. * 

^Williams' Per. Prop. (186,) (188.) 


§ 275. The legal doctrine, as stated, was once held, but 
Courts of Law, as well as Courts of Equity, are bound to recog- 
nise quasi reversions to the extent which they acknowledge the 
existence of partial interests. It would be a halting with one 
foot and a marching with the other to hold that a chattel might 
be given to A for life, and after his death to B, and yet to hold 
that, if there be no gift over, the donor shall not have the chat- 
tel again when A is dead. The substance of the principle was 
gone when partial interests were allowed, and it is wise when 
the substance is gone, to let its shadow go with it. 

As was said by Counsel, in The State, use &c. v. Savin: The 
old doctrine was not that because you could not limit a remain- 
der, therefore a bequest for life was a gift of the absolute pro- 
perty; but because the bequest for life was an absolute gift for- 
ever, therefore no remainder could be limited. So, the present 
doctrine is not because you may now limit a remainder, there- 
fore you may bequeath a life estate in a chattel ; but because 
you may now bequeath a life estate, therefore you can limit 
a remainder." It is true, however, the Referees in that case 
held that a donor or grantor of a life estate in chattels could not 
retain any interest in himself for his own benefit, or that of his 
personal representatives. * And so in the case of Brownfield's 
Estate, it was held that a bequest for life, with no limitation 
over, gives the legatee the absolute property. ^ 

§ 276. But we may safely assert the better doctrine to be, 
that quasi reversions of chattels personal exist in all cases, both 
at law and in equity, in which partial interests alone are created 
in them ; and in all cases in which partial interests are created 
with limitations over which may fail to take efiect, or which are 
void ah initio, or which subsecjuently become void. 

§ 277. The case of Black, adm'r, v. Ray may be cited as an 
*4 Harr. 56, n. (a.) sg Watts, 4G5. 


authority for the first class. In that case, a testator bequeathed 
a negro girl named Hannah to his wife during her life-time, and 
made no other disposition of the property. It was held that the 
assent of the executor to the life-interest extended no further 
than such interest, and that the reversion remained in the exe- 
cutor, and after the death of the tenant for life, he was entitled 
to the property, as the representative of the testator. ' 

So in Young's Adm'r v. Small, it was held that the child, of a 
female slave given by deed for years and afterwards to be 
free, which was born during the years, belonged to the grantor 
by virtue of his reversionary right. The Court say: The cases 
which decide that the child of a female slave, borri during the 
continuance of an estate for life in the mother, pass to the re- 
mainderman, decide also, in effect, that such child is not to be 
regarded as one of the incidental fruits of the right to the tem- 
porary use and service of the mother to which the tenant for life is 
entitled ; and if so, it w^ould seem that a gift or grant of the mere 
use and services of a slave during a particular period, should not 
be considered as including a child born during that period; and as 
the right to the child would not pass by the grant of the subsequent 
freedom to the mother, if it was not granted to the first donee 
as a part of, and incident to the temporary use of the mother, it 
remained of course in the grantor.^ 

So in Vannerson v. Culberson, there was a gift of slaves to A 
for life, without any further disposition of them, and the court 
held that A took but an estate for life, saying that if the testa- 
tor has made no further disposition of the slaves, the law makes 
it for him.^ 

So in Hoes et als. v. Van Hosen, the testator gave to his wife 
the use and income of all his estate during her widowhood ; his 
estate consisted of real and personal property; he gave certain 

'1 Dev. & Bat. 334— see, also, Geiger v. Brown, 2 Strobh. Eq. 359. 
^4 B. Monroe, 220. ^10 Smedes & Mar. 150, 


legacies ; devised the real property after his wife's death to two 
of his sons, and directed them to pay the legacies ; but made no 
disposition of the personalty after his wife's death ; it was held 
that the reversionary interest in the personalty was the primary 
fund for the payment of the legacies. * 

§ 278. But, without citing other cases of the first kind, let 
us proceed to cases of the second kind, viz: those in which a partial 
interest is created with a contingent ulterior interest, or with an 
ulterior interest that is void ab initio, or subsequently becomes so. 

§ 279. An illustration of the first of this second kind may be 
made without looking into the books. Thus, if there be a gift 
of a chattel personal to A for life, and if A should have a son 
living at his death, then to that son; A will take an interest for 
life, and if he have a son living at his death, then that son will 
take; but if he have no son at that time, the chattel will revert ; 
and until that time, the reversionary interest will continue in 
the donor or his representatives. 

§ 280. An illustration of the next kind of this class of cases 
is found in the case of The Ex'rs of James v. Masters. In that 
case, the testator bequeathed certain slaves to his wife during 
her natural life, and directed that after her death they should be 
emancipated ; he then gave several small articles to his nieces, 
and declared at the conclusion of his will, " that no person or 
persons whatever, being in any degree related to him or his wife, 
or any other person or persons whatever, other than was therein 
before mentioned, should ever, under any pretence, come in for 
a share or receive any part of his estate." He then appointed 
his wife and the plaintiffs in the case his executors. The widow, 
with the assent of her co-executors, took the slaves into posses- 
sion as legatee, and kept them during her life. She made a will 
bequeathing all her property to the wife of the defendant^ ap- 

^1 Comstock, 120. 


pointed lier executrix, and died. The defendant took the ne- 
groes into possession, and this was an action of detinue by the 
executors of James, to recover them. 

It was contended, on the part of the defendant, that the direc- 
tion as to emancipation was illegal and void; that though in Eng- 
land, the executor was entitled beneficially to all the personalty 
not given away by the will, unless an intent to exclude him ap- 
peared; yet when such intent appeared, he was converted into a 
mere trustee; that a bequest of a chattel for life, or for a day, is 
still held to be a disposition of the whole interest therein, when 
the ulterior limitations are void, and it is the testator's inten- 
tion to dispose from his executors ; that in the present case, the 
ulterior limitation being void, the whole beneficial interest in the 
slaves passed to the grantee for life, under whom the defendant 
claims ; that upon the assent of the executors, the whole benefi- 
cial interest given by the testator was converted into a legal 
ownership. But Henderson, J., in delivering the opinion of 
the Court, said : The fundamental rule in the construction of 
wills, is, that the intention of the testator, if not inconsistent 
with the law, shall prevail ; and all artificial rules have that ob- 
ject in view ; and all the cases, cited by the defendant's counsel 
and relied on in this case, are bottomed upon that rule. As 
where an estate is given to one for life, with a remainder that is 
void, and the executor is excluded, it raises a presumption that 
the legatee for life shall have the whole interest, because there is 
none other mentioned in the will to take, after the determination 
of the life estate. But I cannot imagine a case, where a legacy 
can be claimed under a will, in express opposition to the plain in- 
tention of the testator. It is a contradiction in terms. But 
there are many cases where the next of kin take in express oppo- 
sition to the words of the will ; there they take as next of kin 
under the law, and not under the will. For the right of the next 
of kin is defeated only by a substitution of some person to take 
in their place, and not by a declaration that they shall not take. 


As if a man by his will were to declare that his next of kin 
should have no part of his estate, and not direct who should take: 
the next of kin would take, not under the will, but under the 
law- The wife's claim in this case is under the will, that is, 
that her life estate shall be extended into an absolute interest^ be- 
cause the ulterior limitations are void, and the executors are ex- 
cluded; which might raise a possible intent in her favor, were it 
not that there are words in the will in express opposition to such 
claim. And although she will take part as one of the distribu- 
tees, she will take nothing as legatee. Therefore she had noth- 
ing to bequeath to the defendant ; for her interest, as one of 
those among whom the residue of the estate undisposed of by the 
will, was to be divided, was not such an interest before the as- 
sent of the executors, as vested a legal title in her legatee. 

"Next, as to the right of the executors. Although all benefi- 
cial interest may be taken from them by the will, this does not 
affect their interest as executors or trustees, or that interest 
arising from their office of executors, which is necessary to per- 
form the trusts of the will, or the trusts raised by law. They 
therefore are entitled to the possession of the negroes ; nor will 
the assent given to the life estate debar them from regaining the 
possession. An assent to a legacy pLSses an interest co-exten» 
sive with that legacy; and where there is a legacy to one for life 
or years, with a remainder, an assent to the legacy to the parti- 
cular tenant, is an assent to the person in rem.ainder, according 
to the English law; for they both in law constitute but one leg- 
acy. But where there is no remainder, the assent enures to the 
benefit of the p^„rticular tenant only, and the executor has a 
right to the possession of the chattel again, to perform the other 
trusts of his office. This doctrine is illustrated by the decisioD 
of this court, in the case of Dunwoodie's Ex'rs v. Carrington,* 
if it needed illustration."^ 

^2 LawHepos. 469. ^See 3 :,lur. 110; also, 6 Ired. Eq. 15L 


In Brown v. Kelsey et als., there was a gift of the income of 
a sum of money for life, with a limitation over of the money upon 
the death of the legatee for life. The court said : It was ar- 
gued for this legatee, that the gift over of the fund after her 
decease was void for uncertainty, and consequently that an ab- 
solute property vested in her. But such a consequence would 
not follow if the gift over were void, but the fund would be lia- 
ble to distribution among the heirs, as intestate property. * 

§ 281. But it is said to be a rule that where the donor of a 
chattel manifests an intention to part with his whole interest, if 
the limitation over is either originally void, or incapable of vest- 
ing when the contingency happens, the v/hole interest vests in 
the first taker. ^ But this rule does not apply, except to cases 
in which conditional limitations are engrafted upon interests in 
the first takers, which, in the absence of the conditional limita- 
tions, would be held to be absolute interests. Thus, if there be a 
gift to A, and if he die without leaving issue, then to B, and A 
die leaving issue, the property does not revert ; for by the general 
gift to A the whole property passed to him, and the limitation 
to B was a conditional limitation engrafted upon it, by the fail- 
ure of which, the limitation to A became absolute. But, if there 
be a gift to A for life, and if he die without leaving issue, then 
to B, and A die leaving issue, then the property reverts to the 
donor or his representatives ; for the gift to A is but for life. It 
is not enlarged by construction ; the issue cannot take by repre- 
sentation, nor can they take by purchase. B cannot take, be- 
cause the event in which he was to take did not happen ; there- 
fore, the remainder of the property is undisposed of, and con- 
sequently reverts : and for this. Green v. Ward,' and Andree 
V. Ward,^ are authorities directly in point. 

^2 Gushing, 243. ^Powell v. Brown, 1 Bailey, tOO. 

M xliis. 262. 

*Id. 260; the case Carr v. Green, 2^McCorcl, 75, (Ciiaacery) is contra. 


§ 282. It is not sufEcient, therefore, to destroy the quasi re- 
TersioD, or the possibility of reverter, that an intention to dis- 
pose of the whole interest in the chattel should appear, though 
it is so laid down in Fearne ; ' but there must be a valid and ef- 
fectual disposition, otherwise the quasi reversion, or the possi- 
bility of reverter J will exist. The case of Powell v. Brown,'* 
cited for the rule, is not inconsistent with what has been assert- 
ed, for that was a case of a conditional limitation engrafted upon 
an absolute interest. In that case there was a gift of slaves to 
Nancy Powell, to have and to hold the same to her and her issue 
forever, and it was declared to be the nature of the deed that 
if she should die without issue, the said slaves should return at 
her decease to the surviving heirs of the donor. She died with- 
out issue in the lifetime of the donor, and it was held that the 
negroes did not revert to the grantor, and that the idea that he 
could take under the limitation to his own heirs in his own deed, 
was " preposterous." Had the limitation, however, to Nancy 
Powell been for life, then, notwithstanding a limitation over to 
the '^ heirs " of the grantor, the quasi reversion would have con- 
tinued in him precisely as if no limitation to his "heirs" had 
been made. Had Nancy Powell died in his lifetime, he or his 
assignee would have been entitled to the property, not hj virtue 
of the limitation in the deed, but by virtue of the quasi rever- 
sion. Had Nancy Powell outlived him, and he had left the quasi 
reversion undisposed of, then " his heirs " would have taken not 
by virtue of the deed, but by virtue of their title as distributees ; 
and this because fortior et potentior est dispositio legi^ quam 

§ 283. These gwasi reversions cannot, of course, depend upon 
estates tail, or upon quasi fees conditional ; because such estates 
cannot exist in chattels, as we have already seen. Nor can even 

'Fearne, (488,) ^\ Bailey, 100. 


a possibility of reverter exist after a gift of chattels, which, in 
the case of real property, would be a fee conditional, except in 
the already stated case of an annuity ; because, the absolute 
property in chattels is held to pass by such a gift. Thus, in 
Betty V. Moore, there was a gift of a slave to A, on condition, 
that if the donee died without issue, the slave with her increase 
should revert, and the court held that the absolute property 
passed to A.^ 

§ 284. But suppose the gift in this last case had been to A, 
and if she die without issue living at her death, then her estate 
in the slave and her increase should cease. In such case if A 
had died without such issue, the slave and her increase would 
have reverted to the donor or his representatives. And this is 
a difference— a quasi qualified fee may exist in chattels, if the 
event qualifying be not too remote ; a quasi fee conditional can- 

§ 285. This difference leads to the consideration of what, in 
cases of real property, is termed a possibility of reverter. This 
possibility of reverter may exist in chattels personal in all cases 
in which a conditional limitation may exist. Thus, if there be 
a gift to A, but if he die unmarried then to B, the limitation to 
B is a conditional limitation ; so if there be a gift to A, but if 
he die unmarried then the property shall revert, the donor has 
a possibility of reverter in the event. 

§ 286. It may, indeed, be laid down as a rule, that conditions 
which are to defeat interests in chattels persoucil, when valid as 
conditions, operate as limitations of those interests. It may be 
asserted, also, that conditional limitations and possibilities of 
reverter in chattels personal, are interests of precisely the same 

»1 Dana, 235. 


But this difference exists in regard to them : conditional lim- 
itations are subject to the perpetuity rule, but possibilities of 
reverter are not ; for the rule is directed against the commence- 
ment, not the ending of limitationSo ' Mr, Lewis, however, ap- 
parently forgetting the position that remoteness, against which 
the rule " is directed, is remoteness in the commencement of 
limitations, and not in the determination of them," argues for a 
different opinion, and tries to subject, by principle, possibilitie.« 
of reverter to the perpetuity rule.^ It ought, perhapSj to be so.- 

§ 287. There is another m.atter which deserves notice in ihh 
connection. We have seen that if chattels personal be convey- 
ed upon condition subseqjient, and the condition be void uh initio,. 
or subsequently become so, the interest will continue as if no 
condition had been annexed to it. 

§ 288. But if such condition amount to a trust, then the casa 
comes under the doctrine of resulting trust. Thus, in Finley 
V. Hunter, a testator bequeathed slaves to his wife for life, with 
remainder to his son, upon condition that he v/ould emancipate 
some forthwith, and others at a specified age. The executor as- 
sented to the legacy, and it was held that a subsequent act of the 
Legislature prohibiting emancipation could not affect the righta 
already vested in the legatees ; who were, therefore, entitled to 
the slaves until the periods respectively fixed for their emanci- 
pation, when they would go to the testator's next of kin«^ 

§ 289. In such a case, a trust is created in favor of the slaves, 
which it is impossible to execute, and therefore there is a result- 
ing trust in favor of the donor, or his representatives. "* 

§ 290. These quasi reversions and possibilities of reverter, 
arise not only where limitations are made by those who have the 

»Lew. Far. (173) Law Lib. ^ij. (617.) 

32 Strobh. Eq. 208. ^ See Lemmond v. Peoples, 6 Iredell's Eq. 137, 


absolute property, but also when limitations admitting them m:e 
made by those who have but partial interests. Thus, one hav- 
ing an interest for life makes a gift for years, he has a quasi re- 
version after the years. If he dies during the years, the inter- 
est for years as well as the quasi reversion, are both thereby 
destroyed. And so if one having an interest for years make a 
gift for fewer years than he has^ a quasi reversion remains in 
him. And so also it is of other partial interests. It is saidy 
indeed, that a less interest than an estate at will cannot be cre- 
ated in realty, but if one having a chattel at will lend it to an- 
other, he has the right to resume the possession against all the 
world, except the owner, and so he seems to have a possibility 
of reverter. But this is de minimis; and besides, as already 
said, it belongs to the doctrine of bailments. 

§ 291. Let us return to those persons who have interests for 
life. If a person having an interest in chattels for his own life> 
convey such chattels to another generally, or for life generally^ 
such donee shall take for the life of the donor, and of course no- 
quasi reversion will be left in the donor.- And such construction 
is m?.de in the first case, because by a gift generally of chattelsj- 
the whole property in them passes ; but here the whole property 
cannot pass, and, therefore, the principle cannot operate except 
pj'o tanto; but it does operate pro taiito, and therefore the whole 
interest of the donor passes to the donee. And such construc- 
tion is made in the second case, because that is the strongest 
construction the gift will bear, and therefore it is taken against 
the donor. 

^ 292. But suppose that A, having an interest in chattels for 
his own life, give them to B for the lifetime of B, and then B 
die, will the chattels revert to A 7 The common law rule in re- 
gard to real property is said to be, " that an estate for a man'& 
ovvn life is more beneficial and of a higher nature than for any 


Y)ther life.'" This rule followed the estate, and shifted its ope- 
ration. Thus, if A had an estate for his own life, he had a 
higher estate than if it had been for the life of B; but if he 
conveyed to B by fine, feoiiment, or recovery, for the life of B, 
the estate conveyed to B v.'as construed to be a larger estate 
than A had, and therefore worked a forfeiture of his estate. If 
this rule applies to limitations of chattels personal, it is clear 
that, in the case put, the chattels would not revert to A. It 
cannot be contended that a forfeiture is worked, when a person 
having a partial interest in chattels raakes a conveyance of a 
larger interest in them ; for all conveyances of chattels personal 
are innocent conveyances, and pass at most but such interest as 
the donor had. And it may be said, that the allowance of life 
interests in chattels was a departure from principle, upon the 
ground of intention, and that that departure was virtually an 
abrogation of the rule under consideration. That having allow- 
ed a reversionary interest to exist in chattels real after a gift 
for life,^ it would be inconsistent to deny that such an interest 
should exist, after an interest pur autcr vie created by such 
tenant for his own life ; and that the same principles of construc- 
tion ought to govern both kinds of chattels. Tliat in the case 
put, either A, or the representatives of B, must take th^ chat- 
tels after the death of B, and that it was clearly not the inten- 
tion of the parties that the representatives of B should have 
them ; bat on the contrary, it was their intention that A should 
have them again. That the intention of the parties ought to 
prevail, and therefore that it ought to be held that during the 
life of B, A had a possibility of reverter, and that on the death 
of B, A is entitled to the chattels again. But on the other hand 
it might be said, that the principle which decides that an estate 
for a man's own life is a larger estate than an estate for the life 
of another, is ec^ually applicable to life ir^terests in chattels; 

'2 Black. Com. (121.) ^^y^es v. Faulkland; 1 Salk. (231.) 


that tlioiigli the allowance of life interests in chattels was a de- 
parture from principle, yet that departure is in no "wise incon- 
sistent with the present principle, and that one departure does 
not justify another in such a case. That though it is clear it 
was the intention of the parties that A shculd tave the chattels 
sgain in case he ^urviycd B, yet it is equally clear that the mere 
intention of parties cannot prevail against a principle of law ; 
and, therefore, that en the death cf B, the chattels shall pass 
to his representatives during the life cf A, and shall not revert 
to A. If, however, this last reasoning prevail, it furnishes an 
example of an arbitrary principle which is allowed to defeat the 
intention of the parties in every case ; for no one, who knew 
that such would he the construction, would niahe such a gift ; 
tut he wculd simply convey such interest as he had. It does 
more ; it furnishes an example of an arbitrary principle which 
is not necessary- — which has not a single reason in its favci — 
which is contrary to the cciTimiOn understanding of m^en, and 
which does violence in every instance to cur cen.mcn sense cf 
justice. It is such principles that bring the law into disrepute, 
and induce the remark that the administration of it is not the 
administration of justice. 

§ 293. It will be remembered that a conveyance of reaHy 
durante viduiiaie, or till any uncertain period within the life of 
the feoffor, &c., passed to such feoifer, &c., an estate for 
his or her own life determinable upon the event : provided the 
party conveying had the power to create such an estate. If he 
had not the power to create such an estate^ and the conveyance 
was tortious, it worked a forfeiture ; if it was innocent, it passed 
such interest as the grantor, &c., had. If, therefore, one having 
an interest in chattels personal for his own life, or for the life of • 
A, convey them to B during widowhood or other like time, B 
takes an interest for the life of the person for whose life the donor 
had them, and that interest is determinable upon the event : — 
therefore the donor, in such case, l\as a possibiHty of reverter. 



§ 29-1. If A has an intersst in a chattel for twenty or other 
number of years, and give to B a life interest in it, A has a 
possibility of reverter ; and if the gift be for his own life and 
he die, and then B die during the ^^ears, the chattel will revert 
to the personal representatives of A. This is well established 
in regard to chattels real and long has been ; and the same is 
doubtless true of chattels personal. 

§ 295. Wherever it is held that a partial interest cannot be 
created in things quts ipso usu consumuntur, it must also, of 
course, be held that nothing like a reversion, or a possibility of 
reverter, can exist after the gift of them, even for a moment. 

§ 296. We come now to consider quasi remainders. A quasi 
remainder is a limitation of personalty, which is to take effect 
upon the regular determination of one or more partial interests 
created therein at the same time ; which can be taken by pur- 
chase ; which will not merge at its creation in another interest ; 
which does not depend upon a condition that is void ; and which 
is not void for uncertainty, repugnancy, nor remoteness. 

§ 29Y. If a future limitation of personalty is not to take 
effect upon the regular expiration of a preceding partial interest, 
it is not a quasi remainder, for then it falls either within the 
class of springing interests, or within that of conditional lim- 

§ 298. A remainder in real property must be created at the 
same time with the one or more particular estates, or as the 
rule is sometimes inaccurately worded, must pass out of the 
grantor at one and the same time. The rule applies to chattels 
personal. If, therefore, A convey a chattel to B for life, and 
subsequently convey his quasi reversion to C, C's interest, though 
in its nature nothing more nor less than a quasi remainder, is 
yet in form still a quasi reversion. 

§ 299. Contingent remainders require particular estates to 


support them, but neither the rule, nor the reason of it, has any 
application to quasi remainders ; for they, whether vested or 
contingent, require no interest to precede them, except to consti- 
tute them quasi remainders. 

§ 300. A quasi remainder must, however, he limited to one 
'ivho can take it by purchase. Thus, if A b}^ deed convey a 
chattel to B for the life of A, remainder to the " next of kin," 
" the distributees," or "the relations" of A, the qtiasi rever- 
sion is in A, and upon his death the property passes by repre- 
sentation, and not by purchase. ' 

So, if A convey to B for life, remainder to his ovrn executors, 
the limitation over is void, unless it appear that it v^'as intended 
for the executors personally, and not in their representative ca- 
pacity. In such case, if A be living at the death of B, the 
chattel Tvill revert to him even when intended for his executors 
persoiiail}^, and upon his death his executors will be entitled in 
their individual capacity if the gift were so intended. So, if a 
gift be made to A for life, rcm.ainder to his heirs, the limitation 
to the heirs is but an extension of the first gift into an absolute 
interest. And so also if the gift be to A for life, remainder to 
the heirs of his body. This is in accordance with the rule that 
" heirs," and " heirs of the body," are words of limitation ; but 
tlie rule, as we have seen, is subject to qualification. 

§ 301. It must also be exempt from merger at its creation. 
If, therefore, A bequeath a chattel to B for life, reB:^ainder to C 
for life, and make no further disposition of the chattel, and C is 
sole distributee, C will take the whole interest after the death 
of B, by virtue of his title as distributee.- And so, indeed, 
would he have done had the whole interest, after the death of B, 

'See Ante, § 59. 

^^ee contra IMagruder & Nichols v. Stewart's ad'rnr, 4 Hov/ (Mis.) 



l3eeB limited bj A to his ''^ next of kin," for the title bj law is 
liiglier than the title by limitation.^ 

§ 302. The doctrines of void conditions^ of repugnancy, re-- 
moteness, and of uncertainty , we have already considered. But 
it may be remarked here that the contested doctrine of possi- 
bility upon a possibility does not apply to limitations of chattels 
personalj though they are all subject, as already said, to the 
rule against perpetuities. 

^ 303. We have said that a limitation of chattels persona,! 
hj way of remainder does not require a particular interest to 
support it as a limitation^ though it requires a particular inter- 
est to precede it in order to give it the denomination of quasi 
remainder. If, therefore, a gift of chattels personal be made 
to A, and after his death to B, and A be dead, or refuse to take, 
the limitation to B will take eifect presently, unless a contrary 
intention appear. 

§ 304. The same doctrine whicli governs devises and limita- 
tions oj way of use, m this particular, applies to limitations of 
-chattels personal. 

§ 305. In an old case, Powell J. is reported to have said : — 
Where a devise is to a monk, remainder to B. In this case B 
shall take immediately, because devise to a monk is void.; but if 
it were that after the death of the rrtonk it should remain^ B 
should not take till after the monk's death; and cited a Year 
-Book. 2 So it is said if there be a devise to A for life, remain- 
der to B in fee, though A dies in the life of the devisor, B shall 
take ; or if A refuses, B shall take. ^ But in Thornby v. Du- 
chess of Hamilton, we find counsel arguing.: Alien, tenant in 
tail, remainder to a subject, he in remainder shall never come 

*See supra, | 59. =12 Mod. 285 ; stated 8 Vin. Abr. (369.) 

31 Eq, Abr, 216. I 4. 


ID, until the estate tail be spent ; though the alien be incapable 
of taking an estate tail for his own benefit. ' 

In Doo V. Brabant, the Lord Chaneellor said :. The old rule- 
is, that where there is a particular estate created with a remain- 
der overj and the first estate is voidj the second estate shall pre- 
vaiij as if it were an original estate. So, where the first estate 
is for life to a person incapable of taking with a remainder every- 
the remainder-man will take immediately. I suppose the autho- 
rity referred to by Mr. Justice Powell, where he puts the case 
of a monkj-and says, that where an estate is given to a monk 
for life with remainders over, that the remainders shall not take 
place till after the death of the monk, and if he die in the life- 
time of the testator, the remainders shall not take place, is 19 
Henry 6. I looked into the book, because I suspected there 
was no such case, as I thought it unreasonable. I take the law 
to be quite otherwise^ and that the remainders should take place 
immediately. The same is the case where there is land limited 
to two jointly, and the one dies in the lifetime of the testator,. 
the estate will survive to the other. There are no cases of exe- 
cutory devises of this sort ; but whether it be by way of execu- 
tory devise, or contingent remainder, the law seems to be, that 
where the event has actually happened, the ease will fall under- 
the same reasoning as if it were given as a remainder. ^ 

So in Billingsley et als. v. Harris et aL ex'rs,, where a testa- 
tor gave six negroes to his wife for life, and after her death to 
such of his children as his executors should think proper, and 
the wife died before the testator, the court said : It is settled 
law, that the limitation over in such case takes efiect upon the 
death of the testator ; and that the rule is not varied by the 
gift to the tenant for life of a power of appointment. ^ 

'iO Mod. (120.) 23 Bj-o c j^ep 39g_ 

^17 Ala. 214, citing Wms. on Ex'rs, 764, and Hardwicke v. Thurstorij- 
4 Rus. 330,^ 


§ 306. The Lord Chancellor, m Doc v. Brabant^ seems to have 
done some little injustice to Justice Powell ; for though the Jus- 
tice may have been unfortunate in the application of the rule, 
yet he evidently intended to assert it to be, that a limitation by 
devise in the form of a remainder is ex vi termini an alternative 
limitation, with the limitation preceding it ; unless a contrary 
intention appear. And that is the rule which governs limita- 
tions by devise and by way of use, and it is equally applicable 
to chattels personal. The rule is founded upon presumed in- 
tention ; but that a contrary intention was at one time discov- 
ered in such cases appears from Lord Stafford's case, where it 
is said that a limitation over after an estate at will would not 
pass even an estate in possession, because the limitation is by 
way of remainder, and was not intended to pass an estate in 
possession. ^ 

§ 307. The rule extends to cases in which the limitation by way 
of remainder depends upon a contingent determination of the 
Srst limitation, as well as to cases in which the limitation by 
way of remainder depends upon a certain determination of the 
first limitation* Thus, if there be a limitation to A until he 
marries, and then to B, and A be dead or ref'dse to take, the 
limitation to B takes effect as a limitation in prcesenti. 

\ 308. The rule extends further, and renders quasi remainders 
alternative limitations with preceding quasi remainders, unless 
a contrary intention appear, 

§ 309. In cases of freehold remainders created at common laWj 
it was necessary to adopt that construction, otherwise subse- 
quent remainders could not have taken effect, if an intermediate 
remainder-man had been incapable of taking or had refused to 
take. But that necessity ut res magis valeat never existed in 
devises or uses, nor in chattels personal ; for the heirs of the 

^8 Rep. 75. 


divisor, or the grantor or his representatives, might have takeit 
the limitation which failed, and yet the subsequent limitations 
could have taken efiect at the time when they would regularly 
have taken effect, had the limitation not failed to take effect. 
The rule therefore stands upon intention. 

§ SiO. .It includes as well those limitations by way of remain- 
der which are regularly to take effect upon the contingent deter- 
mination of a preceding limitation by way of remainder, as those 
which are to take effect upon the certain determination of such 
preceding limitation. Thus, if there be a limitotion to A for 
life, remainder to B until his marriage, remainder to C, and B 
dies in the lifetime of A, the limitation to C will take effect in 
possession upon the death of A. 

§ 311. It follows from the rule, that if a condition precedent 
be annexed to a limitation, it does not extend to a subsequent 
limitation by way of remainder ; unless it be so extended by th^j 
party creating the limitations. 

Thus., in Denn d. Radcliffe v. Eagshaw et als., there was a 
devise to Margaret, an only child, for life, remainder to the first 
son of her body, ^^ if living at the time of her death," and the 
heirs male of such son, and for default of such issue male, re- 
mainder to A ; Margaret had one son, who died in her lifetime, 
leaving a son: and it was held that neither her son nor her 
grandson took any estate, but that the remainder to A took 
effect * 

So, in Pearsall v. Simpson, there was a legacy in trust to pay 
the interest to the separate use of A for life, and after her de- 
cease to divide the principal among her children then living ; if 
no child, to pay the interest to her husband during his life, and 
from and after his decease in case he shall become entitled t-o 
such interest, then to pay the principal to other persons. The 

'6 Term Rep. (503.) 


iiusband died in the lifetime of the wife, and yet the limitation 
over was held to take effect upon the death of the wife without 
leaving issue. ' 

But in Doe v. Shepphard, there was a devise of land to trus- 
tees to pn,v 20/. of the rents and profits to the testator's daugh- 
ter for life, and the residue thereof to her husband for life, and 
the w^hole thereof to the husband for life, after the death of, and 
in case, the daughter should survive her husband, then the land 
to the use of the daughter for life, and after her death to the 
use of her son in tail, then to the heirs of the body of the hus- 
band by the daughter, then to the heirs of her body, then to the 
heirs of the husband. The daughter died in the lifetime of the 
husband, and it ATas held that the limitations over could not take 
effect, because the condition which affected her life estate extend- 
ed to the ulterior limitations, and operated as a condition prece- 
dent. ^ 

In Davis v. Norton, Thomas Hooker devised lands to his son, 
William Hooker, and the heirs of his body, and if his said son 
should die without issue of his body, and the testator's wife 
should survive the said William, then to her for life, and after 
her decease, to the testator's sister for life, and after her death, 
the son being dead without issue as aforesaid, then to other per- 
sons. The testator died, the wife died, and then the son died 
without issue. The sister, who was heir, entered and afterwards 
died. The lands being of small value, and depending merely 
on the words of a will, a case was made and by consent deter- 
mined by the opinion of Mr. Justice Reynolds, who said: If the 
devise had been to the testator's son, and the heirs of his body, 
and if the testator's son should die without issue, and the testa- 
tor's wife should survive him, then to the wife for her life, it 
might be reasonable to take it to be a vested and a common re- 
mainder to the testator's wife, upon the sou's dying without ia- 

MSVes. (29.) ^Douglas, 74. 


sue ; but as it would have been plainly otherwise, if the devise 
had been to the wife in tail or in fee, in case the son should die 
without issue, and the testator's vfife should be then living ; so 
in the present case, it is the same as if the devise upon this con- 
tingency had been to the testator's wife in fee, because all these 
remainders are but as one estate arising upon the same contin- 
gency, and as from one root. 

"Moreover, this devise to Pierce and the two others in fee, on 
the testator's son dying without issue, cannot be taken as a sub- 
stantive devise, because the devise is to Pierce and the two others 
in fee, the testator's son being dead without issue as aforesaid; 
which words, "c5 aforesaid,'''' imply as in manner aforesaid, or 
as if these words had been repeated viz : in case my son dies 
without issue, my wife then living ; for which reason the contin- 
gency not happening, the devise to Pierce and the two others is 
void ; and if this were but doubtful, yet by doubtful words an 
heir ought not to be disinherited." ' Of this case, the Lord Chan- 
cellor, in Doo V. Brabant, is reported to have said : " When I 
considered this case, I was surprised at the note; it is against all 
the principles, and in the teeth of former decisions ; all the re- 
mainders were vested, and should have taken place ; the case is 
no authority for any one point ; it is misconceived from begin- 
ning to end."^ The case is very clearly wrong, but it recognises 
the principle, though it misapplies it. Let the limitation, how- 
ever, to the wife be in tail, instead of for life, and then the con- 
clusion at which the Judge arrived vail be the correct one. 

§ 312. Mr. Fearne distinguishes the cases in which a remain- 
der is limited so as to depend on a contingency affecting the pre- 
ceding estate, but which may not affect the ulterior limitation, 
into three classes : First, limitations after a preceding estate 
which is made to depend on a contingency that never takes ef- 

^2 P. VV. (390.) 2Bro. Ch. R. 397. 


feet. Secondly, limitations over upon a conditional contingent 
determination of a preceding estate, wlien such preceding estate 
never takes effect at all. Thirdly, limitations over upon the de- 
termination of a preceding estate by a contingencyj which, 
though such preceding estate takes effect, never happens. ' In 
the first and second classes, he holds that the contingency upon 
which the preceding estate depends, is not a condition precedent 
*o the remainder ; in the third class he holds that it is. 

§ 313. In a note to Doo v. Brabant, it is said of this classifi- 
cation of Mr. Fearne's : Extremely minute subdivisions often 
tend more to perplex than to elucidate ; these distinctions have 
been disregarded in all subsequent discussions of this question, 
and therefore serve more to display the analytical correctness of 
that profoundly learned and ingenious writer, than to assist in 
presenting a clear view of the various determinations. The true 
question in these cases, the writer adds, and indeed the one which 
Mr. Fearne has subsequently referred to, is, whether the condi- 
tion be annexed to the preceding estate, or is a condition prece- 
dent upon which the subsequent limitations depend] No precise 
words, as it has been repeatedly decided, are necessary to con- 
stitute a condition precedent in wills. The intention, as collected 
from the whole will, must control particular expressions 5 and 
therefore words of apparent condition have, in these, as in other 
cases, been explained and controlled by the context. ^ 

§ 314. If, however, any limitation be void by reason of its 
violation of the perpetuity rule, every subsequent limitation 
must also be void for the same cause ; unless such subsequent 
limitation have a double aspect, in the other of which it is not 
too remote. 

§ 315, If a limitation under a po\ver be made to a person not 

'Fearne's Rem. (234.) ^3 Bro. Ch, Rep. (399,) N. {b.) 


an object of the power, and the subsequent limitation is to take 
effect after it, the subsequent limitation may take effect at the 
time, when such prior limitation wuold have expired, if it be 
otherwise unobjectionable. If the subsequent limitation is to 
take effect by way of remainder after the prior limitation to a 
person not an object of the power^ and is also to take effect in 
default of the existence of that object, then it may take effect 
after the expiration of the first limitation, or it may take effect 
in the other event. The rule is, that a subsequent limitation is 
not accelerated by the fact that a prior limitation is void, be- 
cause made to a person not an object of the pov/er ; unless art 
intention should appear that it should be, and then of course, it 
would be, for it is but a matter of intention. 

§ 316. In another place, we have seen that if a condition sub- 
sequent be annexed to a particular estate in real property, and 
there be a limitation over by way of remainder, the limitation 
over destroys the condition. The same doctrine applies, of 
course, whether the particular estate be the first limitation or, 
be itself a remainder. We mention it here because of the ex- 
tension of the principle, and that we may have an opportunity 
of saying that it does not apply to chattels p'^rsonal in this its 
extension, any more than it does in its more usual and simple form^ 

§ 317. These quasi remainders are either vested or contirgent. 
The same rules by which a remainder is determined to be vested 
or contingent, arc equally applicable to quasi remainders. Those 
rules are : First, Does the right to the remainder depend upon 
a contingent determination of a preceding interest 1 Thus, by 
way of illustration and application, if there be a gift of chattels 
personal to A until he marries, remainder to B, the limitation to 
B depends upon a contingent determination of the gift to A, and 
is therefore a contingent quasi remainder. 

§ 318. A quasi remainder, however, may, like a remainder, 
depend on either of two or more events, and it may be vested 


OB one, and contingent on the other or others. Thus, if there be 
a gift of chatteb personal to A for life, or until marriage, re- 
mainder to B, the limitation to B is vested quoad the death of 

A, but quoad the marriage of A, it is contingent. In devises of 
real property, it is held, that if A devise to his wife for life, if 
she shall so long continue his widow, and in case she marry, to 
B in fee, that it is merely an inaccuracy of expression, and that 
B shall talie in either event, and therefore that the limitation to 

B, as in the former case, is vested as to one event, and contin- 
gent as to the other. There seems to be no reason why the same 
construction should not prevail in gifts of chattels personal, 

§ 319. If the remainder dees not depend upon a contingent 
determination of a preceding estate, then the second rule is: Ls 
there a person in esse, and ascertained, who would be entitled to 
the possession or enjoyment of the remainder, if the time for its 
possession or enjoyment were to arrive at the moment of inquiryl 
If the answer be affirmative, then the remainder is vested ; but 
if it be negative, then it is contingent. Thus, if there be a lim- 
itation to A for life, and if B attain the age of twenty-one year?- 
before A's death, then after A's death, remainder to B and hie 
heirs, the remainder is contingent j for though B is a person in 
esse, and ascertained, yet A may die before B attain twenty-one 
years, and it is therefore evident that the remainder is and must 
continue to be contingent, until B shall attain the required age 
in the life-time of A ; and it is equally evident that it would 
then become vested. And so it is of quasi remainders. 

§ 319<2. These quasi remainders, then, may be contingent, 
either because limited to a person not in esse; or to a person not 
ascertained ; or to a person in esse and ascertained, but to take 
effect only in an uncertain event. And all these several causes 
may be united in the same limitation. 

§ 320. An illustration of the first kind, of quasi contingent 


remainders is a gift to A for life, remainder to his first child, 
and A have no child at the time. 

§ 321. An illustration of the second kind, is a gift to A for 
life, remainder to the next person who shall be governor of the 
State of Alabama. So, if the gift be to A and B for lifcj re- 
mainder to the survivor, the survivor is a person not yet ascer- 
tained, and the limitation is therefore contingent. And so, if 
the gift be to A for life, remainder to the heirs of the body of B.^ 
a person in esse^ the limitation over is contingent, because the 
heirs of the body of B cannot be ascertained until his death. 

§ 322. An illustration of the third kind, is a gift to A for life, 
and if B shall be living at the death of A^ then to B, for it is 
uncertain whether B will be alive at the death of A. Had th® 
gift, however, been to B for life, it would have been vested, and 
not contingent, ^ because that is a contingency to which every 
quasi remainder for life is liable, and a remainder is not contin- 
gent, unless it depends upon a contingency other than its owa 

§ 323. It sometimes happens that in limiting quasi remainders^ 
that words are used which seem to import a contiDgency-j when 
in fact they mean no more than would be implied without them. 
Thus, if there be a gift of chattels personal to A for life, re- 
mainder to his first and other sons successively for lifej and in 
default, or for want of such sons, to his daughters, the daughters 
will take vested interests; each one taking an interest as she is 
born, and this though A should have several sons. 

§ 324. This brings us to the subject of vesting sub modo. 
Thus, in the last case, if the first child of A had been a daugh- 
ter, the whole interest in remainder would have vested in her, 
and if the second child were also a daughter, the interest vested 

^2 Fearae's Rem. 348, 


'in tlie first daughter would have been divested as to a moiety, 
which would have vested in the second daughter, and so of other 
daughters ; and if a son should have been born, the whole inte- 
rest ill remainder would have become divested out of the dauoh- 
ters to the extent of his interest, and so as to other sons. But 
if the gift to the sons had been absolute, then the limitation to 
the daughters would have been a quasi remainder as to the inte- 
rest of A, but an alternative limitation merely as to tlie limitation 
to the sons. The limitation to the daughters could not there- 
fore have vested even sub modo. until there was no lono;er a leojal 
possibility of there being a son, for the rule is applicable alike to 
remainders and quasi remainders, that every limitation subse- 
quent to a contingent absolute interest, must be likewise contin- 
gent until there is no longer a legal possibility of the prior Kmi- 
itation becoming vested. ' 

§ 325. And there is another matter connected with this, viz: 
that when the subsequent limitation in such cases becomes once 
vested in interest, it cannot open or become divested so as to ad- 
mit another person to take in preference to, or in substitution of 
the person in whom it once vested. ^ This rule does not extend 
to cases in which the preceding limitations are partial interests, 
unless the subsequent limitations are merely alternatives with 
the preceding limitations. Thus, if there be a gift to A for life, 
remainder to his first child yet unborn for life, remainder to B, 
the limitation to B will vest sub modo, that is, subject to be 
divested upon the birth of a child of A, so far as to let in the 
life interest of such child. But if the gift were to A for life, 
remainder to his first child for life, remainder to C ; but if A 
should have no child, then to B for life, the limitation to B could 

*See Luddington V. Kime, 1 Ld.Ray. 203; Doe d. Winter v. Perrat, 10 
Bing. 198. 

^Doe d. Winter V. Perrat, 10 Bing. 198; see cases cited 2 Fearne's 
Uem.i I 214, overruling Perry v. Philips. 1 Ves. 250. 



not vest even siih modoj until the legal possibility that A will^ 
have a child is entirely gone; otherwiscj according to the ruley-. 
the interest for life could never become vested in the child of A5-. 
who might subsequently be born. 

§ 326. The general rule in regard to contingent remainders^ 
is, that they must vest during the continuance of a particular 
estate, at least, in entry, or eo imstanti of its determination <>- 
The question is, are quasi remainders subject to that rulel We 
have already asserted that it is not necessary that they should^ 
become vested during the continuance of a preceding limitation, 
or at its determination, and this for the reason, that a quasi re- 
mainder does not require a particular interest to support it. 

§ 327. Biit this,, of course, is subject to the intention of the' 
party creating the limitations. Thus, if there be a gift of chat- 
icls personal to A for life,- and after his death to the eldest son 
of B,- and if B have no son at that time, then to D-, the limitation 
to the son of B must vest before or at the death of A, else it will 
be gone forever, for the time is an essential ingredient in the gift. 

§ 328. Another exception is, when the quasi remainder is to 
a class, and the ground of this exception is the inconvenience of 
compelling parties to refund. Thus, if there be a gift to A for 
life, remainder to the children of B, the children of B born after 
the death of A are not, according to the authorities, entitled. ^ 
But it seems that the reason of the ruling would not exclude a 
child born before the time allowed for settlement and distri- 
bution of the estate. The construction, at any rate, is de- 
parted from when there is a clear indication of a contrary in- 
tent. Thus, if the limitation over be to the children of B born 
after as well as before the death of A, all the children of B must 
be allowed to take. This doctrine extends, of course, to other 

'2 Fearne's Rem., | 227, et seq, .j 


§ 329. In such cases the parties take as joint- tenants, not- 
withstanding the different times of vesting ; unless a contrary 
intention appear. But Woodgate v. U.nwin^ is an authority 
contra — holding that parties are tenants in common, unless they 
take simultaneously. 

§ 330. Another case in which there is a vesting suh modo is, 
when there is a gift in default of appointment, and in this case it 
matters not whether the power of appointing is a power of ap- 
pointing any estate, or expressly and restrictively a power of 
appointing an absolute interest. 

§ 331. Cross remainders are a species of contingent remain- 
ders. It is said that they cannot be created otherwise in a deed 
than by express words, though no technical words are necessary 
to their creation ; but that they may be created in a will by im- 
plication. But this distinction between deeds and wills of real 
property ought not to be extended to the construction of deeds 
and wills of chattels personal. The intention of the party in 
each case ought, when consistent with rules of law, to prevail, 
and there is certainly no difference in principle between an ex- 
press and an implied intention. 

§ 332. It was once, indeed, regarded as a settled distinction, 
that in the construction of a will, the presumption was in favor 
of cross remainders between two, but against them between a 
larger number. It was even held at one time, that the implica- 
tion between two must be a;bsolutely necessary, and that there- 
fore they could not be implied when the words " several and re- 
spective" were used, because, it was said, they disjoined the ti- 
tle. But now it is held to be a matter of intention, whether be- 
tween two or more. 

§ 333. It was also held that cross-remainders could not be 
H Sim. 129. 


implied \Yliere there were express cross-limitations in certain 
events, but that is now well denied ; for an express cross-limita- 
tion in one event does- not affect the reasoning bj which a cross- 
remainder in another event is implied. 

§ 334. Cases illustrative of express quasi cross-remainders 
are fcund in gifts of partial interests to two or more persons, 
with limitations over to the survivor or survivors. Thus, if pro- 
perty be given to A and B for life, with remainder to the survi- 
vor, the limitation over is a cross-limitation by way of remainder. 

§ 334a. When there is a gift to A, B, C, and D, with a limita- 
tion over to survivors, and A dies, B, C, and D take his share 
absolutely among them ; and upon the death of either of them, 
the part so taken will not survive^ unless that construction be 
controlled by the terms of the gift. But we may excuse our- 
selves from going into the cases by referring to Jarman on Wills. ' 

§ 335. An illustration of implied quasi cross-remainders may 
perhaps be found in a gift to A for life, remainder to her child- 
ren as tenants in common, and for want of such issue of A, then 
to B, In such case, perhaps it would be held that the children 
of A took interests for life, with cross-remainders between them. 
Such was the construction made in Ashley v. Ashley ^ of a like 
gift, by devise, of real property. 

§ 336. In Mackell v. Winter, the Lord Chancellor said in 
relation to the case then before him : My reasoning upon it is, 
that the same ground upon which the courts have held them- 
selves bound to raise cross-remainders, will apply in cases of 
personal estate to supply a limitation, that is in the nature of a 
cross-remainder. The reasoning, upon which the courts have 
held themselves bound to supply the want of words for cross- 
remainders, apply equally to the case of personal estate. All 

« See Jar. on Wills, Ch. 47, H Sim. 358 ; see 2 Jar. on Wills, (479.) 


the cases of cross-remainders go distinctly upon this ground : 
that the court inserts limitations not expressed in the v/ill, upon 
the ground disclosed by the will, that the general intention re- 
quires the insertion of such limitations, in order to carry on the 
general plan ; and it is very remarkable, that in Comber v. Hill, 
2 Str. 968, where the Court of King's Bench attempt a distinc- 
tion — which has not since been approved — between that case 
and Holmes v. Meynel, (stated in Comber v. Hill) they particu- 
larly recite, that that decision is perfectly right, upon the cir- 
cumstance that the whole is given over. Most of the cases turn 
upon that point. ' 

§ 337. We come now to the consideration of conditional lim- 
itations. A conditional limitation is a limitation which is to take 
effect in defeasance of a prior limitation ; which does not depend 
upon a void condition, and which is not void for uncertainty, re- 
pugnancy, nor remoteness. 

§ 338. It is the taking effect in defeasance of a prior limita- 
tion, which distinguishes a conditional limitation from a limita- 
tion by way of remainder, and distinguishes it also from a quasi 
augmentative limitation. But the distinction between a condi- 
tional limitation and a contingent limitation by way of remainder 
of chattels personal, so far as regards such subsequent limita- 
tions, seems to be a mere verbal one. 

§ 339. By the common law an interest in real property could 
not be made to cease, and another interest to commence before 
the regular expiration of the prior interest. The reason was 
that an interest could only be defeated by condition and entry 
for the breach of it. No one could enter for breach of a condi- 
tion but the feoffor or his heir ; and when such entry was made, 
the feoffor or his heir was in of the old estate, and the limitation, 
of course, could not arise. But these conditional limitations 

^3 Ves. (541.) 


crept in with uses, and were afterwards tolerated by devise ; and 
tliej were allowed upon the ground that the prior interest was 
determined in the event by the taking effect of the subsequent 
limitation, and so was the necessity of entry avoided. 

§ 340. Conditional limitations cannot be prevented from taking 
effect in the event upon which they are limited by any act of a 
prior tenant, except of a tenant in tail ; nor are they otherwise 
subject to destruction like contingent remainders ; they are sub- 
ject to the rule against perpetuity ; they may be limited to de- 
pend on a possibility upon a possibility. Quasi contingent re- 
mainders are indestructible, in the event upon which they are 
limited, by any act of a prior taker, and are otherwise exempt 
from the destruction to which contingent remainders are liable ; 
they are void when limited to take effect in violation of the rule 
against perpetuity ; and they may be limited to take effect on a 
possibility upon a possibility; and hence the conclusion that 
quasi contingent remainders and conditional limitations of chat- 
tels personal differ in form and not in nature. 

§ 341. We have said that it is the taking effect in defeasance of 
a prior limitation that distinguishes a conditional limitation from 
a quasi augmentative limitation. A quasi augmentative limita- 
tion operates not in defeasance^ but in enlargement of a prior 
limitation. Thus, if there be a gift of chattels personal to A 
for life, and if he marry before he is thirty years of age, then 
to him absolutely, A's interest for life is not defeated by his 
marriage, but it is enlarged. And this, together with what was 
previously said, (a) shows that a conditional limitation cannot be 
made to the same person upon whose interest it is engrafted. 

§ 342. But can conditional limitations of chattels personal 
be created by deed, otherwise than by way of trust? It is not 

(a) ^ 273a. 


•anjwhere denied that such limitations may be created by will, 
ov by way of trust ; and there seems to be no sufficient reason 
for denying that such limitations may be made by deed, not by 
.way of trust, v^herever jimitations of chattels personal are al- 
lowed by such instrument. The objection which exists to such 
limitations in common law conveyances of real property does not 
apply to limitations of chattels personal; and every reason 
which can be urged in support of allowing quasi remainders to 
be created in such property by deed directly, may also be urged 
an support of allowing conditional limitations, 

§ 343. But in Wilson v. Cockrill, the court denies that such 
limitations may be made by deed, and the argument is so broad 
-as to exclude even such limitations when made by way of trust. ' 
Betty V. Mocre- is cited in that case as an authority directly in 
point, but upon examination it will be found that the point in 
that case was whether a fee tail or a fee conditional can exist in 
.chattels personaL 

§ 344. 0n the other hand it is admitted that Higginbotham 
w. Rucker^ involved the point, though it is said that it was not 
made and that no opinion was expressed in relation to it. The 
point, however, was made in Hill et ux, v. Hill ef aL adm'rs,* 
and it was there judicially determined that conditional limitations 
of chattels personal might be created by deed without the inter- 
vention of a trust. Johnson, Che in dehvering his opinion in 
,the court below, said : The real question seems to be simply this : 
can a grantor, in conveying a perpetual title in personalty, annex 
a condition upon which that title shall be divested 1 Can he 
annex a clause of defeasance 1 Every mortgage of personalty 
is an affirmative answer to the question. 

" If a grantor can provide a contingency upon which the title 
'Shall determine and revert to himself, what principle forbids his 

V8 Missouri, J . U Dana, 235. '2 Call ^Dudley Eq. 82. 


substituting other persons for himself, to receive the returning 
property when the contingency shall happen 1"^' 

Upon appeal it was said : There is, there can be, no difference^- 
in any sound judgment, between compelling a life tenant to do 
justice to a remainder-man, and enforcing the instrument before 
us. The case is, to all intents and purposes, that of an abso- 
lute title, divested upon a contingency, and cut down to a title 
for life, vnih. remainder over. And to the objection, that the- 
principles which governed the court in enforcing limitations of 
chattels personal had never been applied to the case of a direct 
deed, it was answered : But if the principles exist, and are ap- 
plicable, and justice demands it, why not apply theml Princi- 
ples exist only for the purpose of being applied. ^ 

•§ 345. In regard to the other elements of a conditional limita^ 
tion, enough, perhaps, has been said in another chapter. R 
may be well, however, to add here, that the principle "that es- 
tates in land cannot be determined in part only, and continue as 
to the residue, or vest and then cease, and again revest," seems 
to be applicable alone to common law conveyances of realty, and 
to be inapplicable to limitations of personalty. Thus, if there 
be a limitation to A forever, but if B marry before the end of 
the year, then to him for life, and after his death the property 
shall revest in A, it seems clear that B would take in the event,, 
and that A would be entitled after the death of B. "Whether 
A would be entitled after the death of B in the absence of any 
express declaration, is a more difficult question ; but the better 
opinion seems to be, that A would be equally entitled in either 
case. The limitation to B is undoubtedly a good conditional 
limitation, and there seems to be no reason for allowing it totally 
to defeat A's interest, when a partial defeasance fully satisfies 
the whole conveyance. 

^Dudley Eq. 76. ^Id. 84; see Hill, 1 Strobh. Eq. I. 


§ 346. We have said tliat there seemed to be no difference 
between quasi contingent remainders and conditional limitations^ 
so far as their own natures were concerned ; but there may, at 
first sight, seem to be a difference, so far as the donor and the 
prior limitee are concerned. For when a quasi contingent re- 
mainder fails to take effect, the property so undisposed of re- 
turns to the donor or his representatives, but when a conditiona] 
limitation fails, the interest of the limitee upon which it was en- 
grafted is unaffected by it. This, however^ is a difference of 
fact, and not of principle ; for, if the cases be made alike, like 
results will follow. Thus, if there be a limitation to A for life, 
or until he marries, with remainder to B, B takes a quasi re- 
mainder, vested as to A's death, and contingent as to his mar- 
riage, and A's interest will terminate upon his marriage, be- 
cause that is one of its limits. So, if there be a limitation to 
A for life, provided that if he shall attain forty years of age, 
then to B, B takes a conditional limitation, dependent upon A's 
attaining the required age. But that age is not a limit to A's 
interest, unless B's can take effect — the attainment of the age 
is the condition, and that with the interest given to B constitute 
the conditional limit to A's interest. In both cases, therefore, 
A's interest is determined by the limit prescribed. "When, 
therefore, the gift is to A until his marriage, with remainder to 
B for life, and B dies, and then A marries, his interest ceases 
and the property reverts ; but when the gift is to A, and provi- 
ded that he attains twenty-one^ then to B for life, and B dies, 
and A then attains twenty-one, the property does not revert, 
but the mterest of A continues unaffected. 

§ 347. It is a rule governing conditional limitations, that if 
the limitation upon which one is engrafted should fail to take 
effect, it may nevertheless take effect, unless a contrary inten- 
tion appear. The ground of the rule is that a preceding limita- 
tion is not per se a condition precedent. Thus,, in Jones v. 


Westcomb, A, possessed of a long term of years, by will de.vi- 
;sed it to his wife for life, and after her death to the child she 
was enciente with ; and if such child died before it came to twen- 
ty-one, then he devised one-third part of the same term to his 
wife, her executors and administrators, and the other two-thirds 
to other persons^ and made his wife executrix -oi his will and 
died;; and the bill was brought against her by the next of km 
to the testator, to have an account and distribution of the sur- 
plus of his personal estate, not devised by the will. One ques- 
tion made was, whether the devise to rthe wife of one-third part 
of the term was good, because it happened she was not then en- 
ciente at all ; and so the contingency upon which the devise to 
her was to take place, never happened. But the Lord Keeper 
delivered his opinion, that thoEgh the wife was not enciente at 
(the time of the -will, yet the devise .to her of such third part of 
the term was good. ' 

So, in Andrews do Jones v. Fulham, a testator bequeathed 
leasehold houses., " to my wife for her life^ and after her decease 
sto such child as my said wife is now supposed to be with child 
■and enciente of^ and his heirs forever ; Provided always, that if 
such child as shall happen to be born as aforesaid shall di^ be- 
fore it has attained the age of twenty-one years, leaving no issue 
of its body-, then the -reversion of one-third part to my said wife, 
.and the other two- thirds to my sisters" A and B. The testator 
"dying within a month after, the wife entered, and enjoyed during 
her life, bu.t had no -child or miscarriage ; and upon her death 
the question was, whether, as no child had ever been born, the 
remainders, limited upon his dying under twenty-one without 
issue, could take eJBfecL And after several arguments, the court 
held that they might ; that though formerly there had been opin- 
ions to the con,trary, yet according to the law now settled, the 
devise to the infant in ventre sa mere was well limited, and if 

H Eq. Ca. Abr.-245, § 10. 


any child had been born, would have passed the term according- 
ly. Secondly, that though no child was ever born, yet the re- 
mainders are, notwithstanding, good ; for there being no devisee, 
the devise, though void only ex post facto, falls to the ground as 
much as if it had been void in its creation, and this lets in the 
remainders immediately ; that though the clause by which the 
remainders are limited is in words, strictly speaking, conditional 
-T— yet they do not make it a condition, but only a limitation J 

§ 348. This leads us to the conclusion that a conditional Yim- 
itation, like a quasi remainder, is an alternative limitation with 
each preceding limitation, unless a contrary intention appear. 

In Statham v. Bell, the facts were as follow : Statham, hav- 
ing an only child, a daughter, made his will, whereby, reciting 
that whereas his wife, Mary Statham, was then pregnant, he 
devised his estate to his son, if his wife should be delivered of a 
son, when he should attain the age of twenty-one. If she should 
have a daughter, then he devised one moiety of the estate to his 
wife, and the other moiety to his daughters, when they should 
attain their ages of twenty-one years « And if either of them 
should die before that time, then her share to the survivor, and 
if both should die under twenty-one, then the moiety to go to 
the wife. The testator died without having any child after the 
making of the will, his wife not having been enciente, and the 
daughter died before she was twenty-one. The question was, 
whether the plaintiff, the testator's heir at law, or the widow, v/ho 
married Bell, the defendant, should have the estate in the event 
which happened. The certificate was in the following words i 
Having heard counsel, and taken the case into consideration, we 
think it was the plain intention of the testator, that, in case no 
son should be born, and he should have no daughter who should 
live to attain the age of twenty-one years, his wife should have 

'8 Vin. Abr. 103, § 53. 


the whole estate ; therefore, in the event which has happened^ 
we think Mary Bell took an estate in fee simple in the whole of 
the premises in question. ' 

In Fonnereau v. Fonnereau, there was a limitation over in the 
event of issue dying under twenty-one, and there never was any 
issue ; and yet Lord Hardwicke held that the limitation over 
took effect.^ 

In Avelyn v. Ward, there was a devise in fee, upon condition 
that the devisee executed a release within three months after the 
death of the testator of all demands against his estate, w^ith a 
limitation over in case of failure to do so ; and the devisee died 
in the lifetime of the testator. It was held that the limitation 
over took efiect, it being a conditional limitation and not a strict 
condition ; and the Lord Chancellor said : I know no case of a 
remainder or conditional limitation over of a real estate, whether 
by way of particular esfcate so as to leave a proper remainder, 
or to defeat an absolute fee before by a conditional limitation ; 
but if the precedent limitation, by what means soever, is out of 
the case, the subsequent lim.itation takes place. ^ The rule, 
whatever it may be, is equally applicable to limitations of per- 
sonalty ; but it is laid down too broadly by the Lord Chancellol*^ 
as is said by Douglas and shown by the cases which he cites, so 
far as remainders are concerned;* and too broadly also, as it 
seems, so far as conditional limitations are concerned. 

§ 349. And this brings us to the qualification, " unless a 
contrary intention appear." Thus, if there be a gift to A fox 
life, with remainder to B, but if B should die before he attains 
twenty-one years, then to C, with a proviso that if B refuses to 

■Douglas 65, note (3.) 23 ^^j- 315^ sj y^g g^. 419, 

■* Douglas 487, note. But in Dao v. Brabant, 3 Bro. C. R. (398,) the 
Lord Chancellor said of Davis v. Norton, 2 P. W. 390, one of the cases, 
'Hhe case is no authority for any one point : it is misconceived from be- 
ginning to end.-' 


take, or be dead at the time, then to D, it is clear that if B re- 
fuses to take or be dead, the limitation to C can never take ef- 
fect, for a contrary intention clearly appears. 

So, if there be a gift to A for life, with remainder to her child 
with which she is supposed to be enciente; but if such child 
should be a male, and should die under twenty-one years of age, 
then to B ; but if such child should be a female, and die before 
She attains her twenty-first year, then to C, and A be not enciente 
as was supposed, neither B nor C can take ; for there is a con- 
dition precedent unfulfilled, and not a mere preceding limitation 
which failed, and so there is a casus omissus. 

In Doo V. Brabant, Sarah Counsel! made her will, and thereby 
gave 1000/. 3 per cent, consol annuities and other effects to 
trustees in trust for Sarah Counsell of the age of twelve years, 
until she should attain her age of twenty-one years ; then to 
transfer the said sum to the said Sarah Counsell, her executors 
and administrators, to and for her own use and benefit. And in 
case the said Sarah Counsell should die under the age of twenty- 
one years, leaving any child or children of her body lawfully 
begotten, then in trust for all and every such child or children 
who should live to attain his, her, or their age or ages of twenty- 
one years ; but in case the said Sarah Counsell should die under 
the age of twenty-one without leaving child or children, or being 
such they should all die under twenty-one, then in trust for tes- 
tatrix's three nieces. Sarah Counsell, the legatee, married and 
died in the lifetime of the testatrix, having attained twenty-one 
years of age, and leaving two children, the plaintiffs. The ques- 
tion was whether the children of Sarah Counsell were entitled 
under the limitation to them. The Lord Chancellor said, inter 
alia: There have been different determinations as to this point; 
and I wonder at it because it was originally decided as it was 
afterwards. There is a case in Fortescue, 104, that the estate 
having lapsed, the condition lapsed, and the remainder could not 
take place. In that case an estate was given to A, upon con- 


dition of paying £100 to B, and the estate lapsed ; but upon 
the same reasoning that was used in that case, Lord Hardwicke, 
in Avelyn v. Ward, 1 Ves. 420, decided that the limitation was 
good, and that wherever there is a conditional limitation, and 
the first estate becomes void, the second estate shall take place. 
This doctrine has since prevailed ; Hayward v. Stillingfleet, 1 
Atk. 422. The rule is, that where there is a conditional limita- 
tion, it shall not be considered as a precedent condition, but as 
a description of the estate. This point first received its deter- 
mination in the cases on Waith's Will : there the testator died^ 
leaving a wife and three sisters. He devised to his wife for lifcy 
remainder to the child she was then supposed to be enciente of, 
and in case if such child should die before twenty-one, without 
issue, the reversion to his wife and two sisters, Elizabeth and 
Anne. The question first came on in Jones v. Westcomb, Pre. 
Ch. 316,' afterwards in Andrews v. Fulham, 2 Stra. 1092, Roe 
y. Wicket, Guillivre v* Wickett, 1 Wills, 106, and in Avelyn 
V. Ward, 1 Vesey 420. From the vv^hole of the determinations 
on the case of Waith's Will, I must take it as a rule, that 
wherever the prior estate is made to depend upon any described 
event, and the second estate is to arise upon the determination 
of that event, the first is not to be taken as a condition prece- 
dent, but, upon its failure, the second estate must take place." 
It being admitted that the children were born before the prior 
legatee, their motherj attained twenty-one, the chancellor mciin- 
ed to decide in their favor, but gave permission to the other side 
to have a short case stated as upon leasehold property for the 
opinion of the Court of King's Bench. The case was accord- 
ingly sent, and that court certified *, " We have heard counsel, 
and considered the case, and are of opinion, that the plaintiffs 
took no estate whatsoever in the said leasehold premises, by 
virtue of, and under the will of, the said Sarah Counsell ; the 

*See also for the case 1 Eq. Abr. 245. 


eyents upon which their claim was to take place, not having hap- 
pened." * 

In Calthorpe v. Gough, there was a legacy of 10,000^o to Ladj 
Gough, if she survived her husband, but if she died in the hfe- 
time of her husband, leaving children,- then to her children : she 
survived her husband, and died, leaving children, in the testator's- 
lifetime; and the decree was that the children could not take.^ 

§ 350. This brings us to the general proposition, that the event 
apon which a conditional limitation is to take effect, mmst happen- 
before it can take effect, because it is a condition precedent. 

Thus, in Parsons v. Parsons, there was a gift in trust to pay 
the interest to Isabella Henwood, until three months after the- 
death of the testator's wife, and then if she should be living and 
should have attained twenty- one years of age^^to pay the princi- 
pal and arrears of interest to her ; but in case she should happen^ 
to die before that time under the age of twenty -€ne and unmar- 
ried, then the legacy should sink into the residue of his personal 
estate; and in case she should survive his wife, and should be 
married at the time she became entitled to the legacy, then in 
trust to convey to such persons as she should appoint for her 
separate use ; " and in case the said Esabella Henwood should 
happen to depart this life, before she should have attained the 
age of twenty-one years, leaving lawful issue," then to such is- 
sue. Isabella Henwood married Bobert Parsons and had issue 
one son, and having attained tweni:v-Gne, died in the life-time of 
the testator's widow. The bill was filed on behalf of the infant 
son, and the Master of the Rolls, with very great reluctance, 
found himself judicially bound to decide that the bill could not 
be sustained. He said ; It is one of those cases in which, a& 
Lord Kenyon observed upon Denn Vv Bagshaw, I find my wishes 

'3 Ero. C. R. (393.) and see note at the end of the case for others. 
2As stated by Ridley, coiiusel, arguendo^ Doo v. Brabant, 3 Bro. C. R. 
(395)— see note (o> same page, for the case; also, 4 T. R. (708,) N. (b.),- 


in opposition to wliat I am bound judicially to decide. I have 
been very desirous that I could upon judicial grounds raise an 
implication of what certainly is not expressed ; that either the 
child of Isabella Parsons, or she herself took a vested interest 
in the fund ; but, upon great consideration, I am under the ne- 
cessity of determining that no interest vested either in her or in 
her child. This is almost exactly the case of Doo v. Brabant. 
it is true, when that case was first before Lord Thurlow, his 
lordship seemed to entertain considerable doubts upon my decis- 
ion in Calthorpe v. Gough ; but I rather think that case was not 
sufficiently stated to him ; for it was not near so strong as Doo 
T, Brabant ; which Lord Thurlow sent, after intimating a strong 
opinion upon it, to the Court of King's Bench ; but that Court 
dissenting from that opinion, his lordship decided according to 
Calthorpe v. Gough, ^ 

In Bell V. Phyn, the testator bequeathed the residue of his 
personal estate equally among his three children, George, Jane 
and Catherine ; but if any of them died '^ without being married 
and having children," the share of such child was to be distri- 
buted among the survivors. After his death Jane married, and 
having a child, the question was whether she took an absolute 
vested interest in a third part of the residue 1 which depended 
upon the construction of the words, " without being married and 
having children;'-' for, if the having children was to be consid- 
ered the same as without leaving children, then her interest 
would be liable to be divested on the happening of that event. 
But Sir William Grant, M. R., construed the words, "without 
being married," in the sense of " without ever having been mar- 
ried," upon the authority of Maberly v. Strode; and after de- 
olaring that "or" should be substituted for "and," he decided 
that " without having children," meant, in the present instance, 
without having had a child or children. And accordingly he 

^5 Ves. 578. 



decreed, that Jane having married and had a child, the interest 
which vested in her at the testator's death became absolute. * 

Now, in Maberly Vo Strode, the testator gave a residue in 
trust to pay the interest to his son, Samuel Strode, for life, re- 
mainder, as to the capital, to divide among all Samuel's children, 
^^ but in case Samuel died unmarried and without issue," or 
having issue, the sons should die under twenty-one, and the 
daughters before that age or marriage, then in trust to transfer 
the fund to his nephews and nieces, Samuel married and died 
without issue ; and one of the questions was, whether, as Samuel 
did not die unmarried^ the limitation over v^^as not disappointed 
and an intestacy created 1 But Lord Alvanley determined in 
the negative, declaring, first, that the word "unmarried" is to 
1)6 understood to import as never having been married ; and the 
word "and" to be changed for "or," so as to make a double 
contingency; (a) consequently^ although Samuel married, yet, as 
the alternative event happened, i, e. his death without leaving a 
child, the limitations to the nephews and nieces took place.- 

Another case illustrative of the necessity that the contingency 
shall happen before the conditional limitation can take effect, is 
•the case of 'Sturgess v. Pearson. In that case the testator gave 
the interest of one-fifth part of his personal property to his 
daughter for life, and after her death the capital to. be divided 
among her three children, or such of them as should be living at 
her decease, payable at twenty-one. The three children died 
before the daughter, and it was decided that they took vested 

»7 Ves. 454— stated 1 Rop. Leg, 413. 

(a) Upon construing " and," "or," and vice versa, see Girdlestoiie 
V. Doe, 2 Eng. Ch. R. p. 2, 227; 2 Philips, 494-6; 1 Philips, 551; 1 
Philips, 543, and N. (1;) 2 Hill, 430; 2 Hawks, N.C. 613; 4 Hare, 542-3, 
N. (1;) 2 Rop. Leg. 290, ei seg. ; Malcolm v. Taylor, 2 Rus. & My. 416 ; 
Losh V. Tcwnley, 1 Coop. Sel. Ca. 372; Miles v. Dyer, 8 Pirn. 330; 
McGraM^ v. Davenporr, 6 Porter, 331-2; 2 Fearne's Rem., ^ 235, et seq. 

23 Ves. 450— staied in 1 Rop. Leg. 412, 


interests, which were to be divested in the event of there being 
one or two of them living at the mother's death, an event which 
did not happen, therefore their personal representatives were en- 
titled at the death of the mother. * 

So, in Browne v. Lord Kenjon, 1000/. were bequeathed to 
trustees to pay the interest to Abagail Jones for life, remainder 
in trust to divide the interest between Miss Chetwode and Mrs, 
Davison, during their joint lives, and to pay the whole of it to 
the survivor for life, with remainder in trust after the survivor's 
death, to pay the capital to Sir John Chetwode ; but if he were 
then dead, to divide it between his two brothers, Charles and 
Philip Chetwode, or the whole to the survivoi\ Abagail Jones 
•lied, then Miss Chetwode, then Charles, then Philip, then Sir 
John Chetwode, and lastly Mrs. Davison. It was held that the 
legacy vested in Charles and Philip as tenants in common, sub- 
ject to be divested if one alone should survive Mrs. Davison, the 
last tenant for life ; and that since there was no survivor in exis- 
tence at that period, both brothers having died before her, the 
contingency upon which the interest was to be divested never 
happened ; consequently the personal representatives of each 
brother were entitled to the fund.^ 

§ 351. Now the general proposition last stated, would be true 
without qualification, were it not for that other principle, that a 
conditional limitation is construed to be an alternative limitation, 
unless the contingency upon which the preceding limitation is to 
take effect, is extended to it also. Hence it is, that when the 
preceding limitation takes effect, it cannot be defeated except 
the contingency happen upon which the conditional limitation is 
to take effect. Hence it is, if the preceding limitation fails to 
take ejEect, and was limited on a contingency which is extended 

M Mad. 411— stated 1 Rop. Leg. 415. 
23 Mad. 410— stated 1 Rop. Leg. 415. 


to the conditional limitation, then the conditional limitation can- 
not take effect except the contingency happen. Hence it is, if 
the preceding limitation fails, and the conditional limitation is to 
take effect upon a contingency unconnected with the preceding 
limitation, then the contingency must happen before such condi- 
tional limitation can take effect. 

§ 352. If a conditional limitation be engrafted upon a limita- 
tion which is in violation of the perpetuity rule, it is also void for 
that reason, because the rule requires that a limitation must be 
so made that at the moment of its creation, it may be said that 
it must necessarily vest, if at all, within the time prescribed by 
the rule* 

§ 353. If a limitation be made under a power, and to a per- 
son not an object of the power, and a conditional limitation to a 
person who is an object of the power be engrafted upon it, then 
if the prior limitation would have failed, had the appointee been 
an object of the power, the case falls within the principles which 
govern limitations not under powers ; provided, of course, the 
conditional limitation be within the power. But if the prior 
limitation would not have failed had the appointee been an object 
of the power, then the conditional limitation must also fail, if it 
depends upon the taking effect, or upon the contingent determi- 
nation of such prior limitation, as a condition precedent. 

§ 354. " It is a rule," says Mr. Smith, " which, though not 
laid down by authority, yet commends itself to reason and the 
analogy of the law, that : Where the prior limitation carries the 
fee in real property, or the absolute interest in personal pro- 
perty, a subsequent limitation, in doubtful cases, ought to be 
construed as an alternative limitation, if possible, rather than as 
a conditional limitation, provided the prior limitation cannot 
fairly be construed to confer an interest vested prior to the event 
on which the subsequent limitation is to take effect, and an ab- 
^lutely limited interest, either by reason of the form of its ori- 


ginal limitation, or of some subsequent explanatory expres- 

" For, suppose," says the author, " the prior limitation to 
bp executory in its original creation, but afterwards to confer a 
vested interest, it would seem that the subsequent limitation 
ought, in a doubtful case, to be construed, if possible, as an al- 
ternative, and not as a conditional limitation, in order that the 
estate of the persons taking under the prior limitation, who were 
the primary objects of the testator's regard, may not be defeated 
in favor of those claiming under the subsequent limitation, the 
secondary object of his regard. On the other hand, if the prior 
limitation never takes effect at all, it is clear that the subse- 
quent limitation, even without the necessity of being construed 
as simply an alternative in its original creation, would be al- 
lowed to operate as an alternative. " The construction," he 
adds, '' which leans towards holding a limitation to be an alter- 
native rather than a conditional limitation, is sometimes aided 
by the doctrine of remoteness. For, where a limitation would be 
too remote, if it were held to be a conditional limitation, but not 
too remote if held to be an alternative, it should, if possible, be 
construed an alternative, according to the maxim, TJt res magis 
vcdeaty quam per eat. * But when the prior limitation is to take 
effect at a time preceding the event upon which the subsequent 
limitation is to take effect, it would be doing violence to the in- 
tention of the party making the limitations, to construe such 
subsequent limitation to be a mere alternative limitation."^ 

§ 355. If the general reasoning upon which the rule is based, 
that a limitation in such doubtful cases shall be construed to be 
an alternative, rather than a conditional limitation, be sound, it 
justifies us in asserting that the rule extends, if needed, to cases 
in which the prior limitation is of a partial interest. 

'2 Fearne's Rem., g 651-54. ^g^e lb., ^ 655. 


§ 356. There is another reason which supports the rule, and 
that is, that the law leans against a construction which would 
postpone the absolute enjoyment, and indeed keep in doubt and 
suspense the nature of the interest bestowed, ' and though this 
is peculiarly applicable to absolute interests ; yet the principle 
extends with equal force pro tanfo to partial interests. 

§ 357". These conditional limitations are, of course, always 
contingent until the contingency happens, and they are generally 
so framed that they are to take effect in possession on the hap- 
pening of the contingency ; but they may be so framed as not to 
take effect in possession until a time subsequent to the happen- 
ing of the contingency. Thus, if there be a gift to A, but if B 
shall pay to A one hundred dollars, then one year after such 
payment by B the property shall pass to him, and B pay the 
hundred dollars to A, his interest becomes a certain executory 

§ 358. A limitation may be a conditional limitation in one 
event, and a quasi remainder in another ; it may be a conditional 
limitation in one event, and a springing interest in another ; and 
it may be a conditional limitation in one event, and an alterna- 
tive limitation, as it often is, ex vi termini^ in another. 

§ 359. We come now to springing interests. A springing in- 
terest is a limitation which is to take effect at a future time, 
neither upon the regular expiration of a prior limitation, nor in 
defeasance of it ; which does not depend upon a condition that is 
void, which is not void for uncertainty, repugnancy, nor re- 
moteness, and which may be taken by purchase. 

§ 359a. There are two ways in which an interest may be lim- 
ited to take effect at a future time : 1. It may be limited to 
take effect in right : 2. It may be limited to take effect in pos- 

'Home V. Pillans, 2 My. & Keene, 15. 


session, or enjoyment, or in both, postponing the possession, or 
&C.J but leaving the interest to vest in right. There are two 
classes of cases in which the possession, or &c. is postponed : 1» 
Those in which the party is entitled to the accruing profits du- 
ring the intermediate time from the limitation, until it is to take 
eifect in possession, or &c. either as they accrue, or at the time 
of possession, or Sec. : 2. Those in which some person other than 
the limitee is entitled to the profits accruing between the making 
and taking efiect of the limitation. 

When a limitation is to take effect in possession, or enjoy- 
ment, or in both, at a future time, and the limitee is entitled to 
the accruing profits, either as they accrue, or at the time of 
possession, then the interest is not strictly a springing interest ; 
unless the limitee is either a person not in esse, or not ascertained, 
or the taking effect is upon a condition precedent. In such case 
it is a present vested interest. 

When the limitation is to take efiect in possession, or &c. at 
a future time, and some person other than the limitee is entitled 
to the accruing profits, then if the interest be not by way of re- 
mainder, it is not a vested, but an executory interest. All lim- 
itations that are to take effect in right at a future time, are exe- 
cutory interests. It is apparent, therefore, that all springing 
interests are executory interests j and that they are either cer- 
tain or contingent. An interest is not vested^ because it is cer- 
tain; and that is a distinction to be remembered. 

8596. Executory interests are all subject to the perpetuity 
rule, and therefore all springing interests, whether certain or 
contingent, are subject to it. And this leads us to notice the 
distinction in this respect between a quasi remainder and a spring- 
ing interest. If a chattel be limited to A for twenty-three 
years, remainder to B, the limitation to B is a vested quasi re- 
mainder, and seems therefore not to be in violation of the per- 
petuity rule ; but if the limitation is to B, after the expiration 


of twenty-three years, and the twenty-three years be undisposed 
©f, the limitation is a springing interest — a certain executory in- 
terest — and is therefore void by reason of its remoteness. This 
distinction ought not to exist, for there is no difference in the na- 
ture of quasi remainders and springing interests. 

860 These springing interests cannot be created by parol, 
except by way of trust ; because the title to chattels personal 
cannot pass from one person to another by conveyance inter vi- 
vos, except there be a delivery of the property, or that which is 
tantamount to a delivery. ' A trust, however, may be attached 
by parol to chattels personal, whether they be transferred to 
another or retained by the party creating the trust. ^ Whether 
a Court of Equity will enforce such a trust, is a question which 
must be decided in each ease by the principles of a graduated 
conscience, to which that court ever looks in its administration of 
refined justice. 

§ 361. A deed delivered is regarded as tantamount to a de- 
livery of the property quoad the parties ; and whether it is tan- 
tamount to a delivery of property quoad creditors and purchas- 
ers, seems to depend upon the question whether the conveyance 
is fraudulent. The better doctrine seems to be, that where a 
future interest in chattels is created by deed for a valuable con- 
sideration, the mere fact that the grantor retains possession con- 
sistently with the deed, is not evidence of fraud; but, that 
where such deed is voluntary, it is fraudulent against existing 
creditors ; ^ for a man must be just before he can be generous ; 
and fraudulent against subsequent creditors and purchasers 
without notice ; because, by reason of continued possession, the 

'See Pitts v. Mangum, 2 Bailey, 588. 

^See Sledge's Adm'r et al. v. Clopton, 6 Ala. 589. 

^DeMillen v. McAIilley, 2 McMuUan, 499. 


donor traded and trafficked -with others and deceived them. And 
this last is one of the reasons given in Twjne's case. 

§ 361a. But the reason does not extend to subsequent credit- 
ors and purchasers with notice actual, or constructive ; for they 
cannot say they were deceived, and therefore they ought not to 
be heard against the deed. The deed, it is admitted, passes 
the legal title to the voluntary donee, and the donor cannot di-> 
rectly revoke it ; but if he may sell to a person with notice, or 
subject the property to the claim of a future creditor with no- 
tice, he is allowed to do per oUiquumy that which he cannot da 
yer directum^ and that is contrary to a maxim of the law. A 
title by voluntary gift, when untainted with fraud, is as perfect 
as a title for valuable consideration, and to allow a subsequent 
purchaser or creditor, with notice of such title, to deprive the 
voluntary donee of it, is a violation of common justice, and a 
violation of the common maxim, nullus eommodum capere potest 
de injuria sua propria. {a) 

§ 362. We have been treating of but one badge of fraud vizr 
retention of possession ; for it was that alone which distinguished 
the creation of a springing interest in chattels personal, from the 
creation of a presest interest with a delivery of the property .- 
Where it is clear, therefore, that a springing interest is not void 
by reason of the retention of the possession, the question wheth- 
er it is otherwise fraudulent depends for determination upon the 
same principles precisely, which are applicable to the determina- 
tion of a like question in regard to a present interest. 

§ 362a. But the general proposition is, that springing inter- 
ests in chattels personal may be created by deed or will, but not 
by parol, except by way of trust. When created by deed, to 

(a) But see the cases — Adams v. Broughton, 13 Ala. 731; Bohn r. 
Headley, 7 Har. & Johns. 257 : Hope v. Hutchins, 9 Gill & John. 77 ; and 
other cases cited in Adams v. Broughton^ 


take effect after the donor's death, they are sometimes called 
remainders ; but they seem to be strictly springing interests, a& 
distinguished from quasi remainders.^ 

§ 363. It is sometimes a question, whether an instrument 
creating an interest in chattels to take effect in possession at the 
death of the donor or grantor, is a deed or a will. The rule iSy 
that if the instrument be intended to operate as a deed, it shall 
so operate, if that operation can be allowed consistently with 
the rules of law,, and if it cannot operate as a deed, it may then 
be allowed to operate as a will, though not so intended ; provi- 
ded it was the intention of the party that it should operate after 
his death. 2 But the converse of the latter part of the rule is 
not true : " for^'^ as said in Dawson v. Dawson, " what was ex- 
pressly intended to have a testamentary effect, shall not lose its 
ambulatory and revocable character, and acquire a present en- 
ergy, under any circumstances ; since that would serve to rob 
the disposer of his rightful control^ and must, therefore^ neces- 
sarily be against his intentions.''^ Prima facie such an instru- 
ment is a will.'* 

§ 364. We have in other places said sufficient, perhaps, in 
regard to the elements of a springing interest, though a remark 
here in regard to taking by purchase may not be amiss. If the 
limitation be invalid for any cause, of course, it cannot be taken 
hj purchase ; but the words are used to show that if the gift 
be precisely that which the law gives — or if it be a part of what 
the law gives, and the law gives the residue, the taking is by 

^For cases of such interests created by deed, see Banks's Adm'r v.^ 
Marksberry, 3 Littell 275- Horn et al v. Gartman, 1 Florida, 63 ; Bohn 
Y. Headley, 7 H. & J. 257; Hope v. Kutchins, 9 G. & J. 77; Adams v. 
Broughton, 13 Ala. 731, &c, 

2Horn's ex'rs v. Gartman, 1 Florida, 63: Masterman v. Maberly, 2 
Haggard, 235. 

3Rice's Eq. Rep. 2&0. ^Pitts v. Mangham, 2 Bailey, 588. 


representation and not by purchase. The question may arise 
under deeds or wills. The maxim in such cases is: Fortior et 
potentior est dispositio legis quam hominis. Thus, if A be- 
queath his personalty to those who are entitled under the statute 
of distributions generally, and not specifically, they take by re- 
presentation, and not under the testament. And so it is if the 
gift be of a future vested interest, and there is no eflective pro- 
.yision preventing the vesting of the residue. 

§ 365. This is not an immaterial matter ; for suppose a testator 
bequeath his whole estate to a daughter, an only child, after 
the death of her present husband, and make no other disposition 
in regard to it, it seems clear that the whole property would 
vest in her presently, and the husband would have the right to 
reduce it to possession — subject, of course, to previous admin- 
istration. The principle was involved in Magruder and Nichols 
V. Stewart's adm'rs ; ' but the court seem to have gotten among 
the doctrines of merger and remainder ^ and thus to have over- 
looked the principle of the case. The facts of that case were, 
that Brocus made a will in which he declared : " I give and be- 
queath to my only daughter, Ann, so long as she may live, for 
the support of herself and children, the plantation whereon I 
now live, with negroes. Pitcher, Jimbo, Charlotte, Mary, &c., 
and when it may please the Almighty that her dissolution shall 
take place, I desire that the before mentioned seven negroes, &c., 
shall revert to gross estate and be disposed of as hereinafter set 
forth." No other disposition of the property was " set forth " 
in the will- The court, however, held that Ann did not become 
the absolute owner of the negroes, the only part of the property 
in controversy. 

§ 366. When these springing interests are to arise at a future 
time out of an interest in personalty, or realty, then we have 

14 How. (Mississippi) 205. 



the same question which we have had in other connections, viz : 
whether the taking effect of the interest out of which the inter- 
est is to spring is a condition precedent to its springing. 

Thus, in Holmes v. Cradock, there was a gift upon trust to 
pay to the testator's son a residue of profits of freehold, copy- 
hold, and leasehold estates, during the life of his mother, and if 
the son should die in the lifetime of his mother, without leaving 
a widow or child, then to his mother for hfe, and subject to the 
trusts of the will, in trust for the son, his heirs and assigns for. 
ever, chargeable with the legacies thereinafter given; and it 
was further provided, that if the son should die leaving his mo- 
ther, and without leaving a widow or any child, then after his 
death and his mother's, certain legacies were to he paid to cer- 
tain persons. The testator died, the mother died, and then the 
son, without leaving a widow or child ; and the question was, 
whether in the events which had happened, the legacies were 
payable. The Master of the Rolls said : I am afraid I must 
decide against the legatee. I am perfectly satisfied as to the 
intention ; but it is not sufficiently expressed to enable me to 
execute it. The will requires to be very minutely considered. 
It must be observed, that the testator gives the rents and profits 
to his son, during the life of the mother. The question is, 
whether these are legacies at all events to be paid upon the 
son's dying without a wife or child, or only upon that contingen- 
cy happening in his mother's life. One cannot help wishing and 
straining as far as one can, to support what must be supposed 
to be the intention ; but it is impossible for the court to indulge 
speculations against the heir, unless it is manifest that the tes- 
tator intended that the legacies should be raised in the event 
hat has happened. It has been determined, that conditional 
imitations shall never be extended beyond what is absolutely 
necessary from the context of the will, and shall not be suppos- 
ed to govern any disposition, except that upon which they may 
naturally be supposed to attach. 


" Therefore, if a testator says in his will, that if his wife shall 
be enciente at his death, and a son shall be born, he gives to that 
son, and after his death, over, the condition has been construed 
only introductory of the gift to that son, if born, and not to 
govern the limitation over. I have tried to extend that princi- 
ple to this will. If it had been simply a gift to the son for lifejj 
then if he should die before his mother without a wife or child, 
to her for life, and subject to these trusts to the son in fee charge- 
able with these legacies, I should have held it an absolute charge 
at all events upon the reversion, and to be raised, whether he 
died without a wife or child in the life of his mother or not ; but 
when I read these words, ^' chargeable with the legacies herein- 
after given," I am bound to look, what are those legacies ; for 
he gives no legacies except by reference. Can I reject these 
words, " leaviag my wife," and decide that he must have intend- 
ed these legacies to be raised at all events, whether the son sur- 
vived the mother or not ? I should, in my opinion, be going 
much farther than I am warranted, by totally rejecting words,, 
unless they are repugnant to the clear intention manifested in 
other parts of the will. Nothing is given but a mere contin- 
gency upon a particular event ; and when one considers what 
the intention might possibly be, there might be a reason for the 
intention, that these legacies should not arise but in that event. 
If the son died leaving a wife or child, even the widow was to 
have no life estate. It is natural to suppose an intention, that 
she should have it ; but he has thought fit to make her interest 
in this estate depend entirely upon a circumstance which one 
would not think ought to govern it. When I see such an inten- 
tion as that, it is impossible for me to say he might not have the 
intention, that in that event onl}^ these legacies should arise, and 
in the other the son should have the estate discharged. 

" The cases decided govern this. Lord Thurlow, I know, in 
Doo V. Brabant, gave a strong opinion against my determina- 


tion of Calthorpe v. Gougb, ^ and rather intimated, that upon 
the clear intention, he could supply the words that were wanting 
in the will before him. It went to law ; and the court of law 
made the same answer that I am afraid I must make here. So 
strong a case as that can hardly be stated. The next case was 
Denn v. Bagshaw.^ A stronger could not happen. The court 
admitted, the intention must have been in favor of the grand- 
son, but felt themselves bound, notwithstanding, to decide against 
him, under the extraordinary circumstances of that case. To 
apply the principles of that case to this : I cannot find myself 
at liberty to reject these words, and if [ give any effect to them, 
these legacies do not arise." And accordingly the bill was dis- 

^3 Bro. C. C. 393, in note. 26 Term, 512. »3 Ves. 317. 




§ 367. The only points to be noticed liere in regard to inter- 
ests in presently are — 1. In regard forfeiture: 2. In regard to 
merger : 3. Extinguishment : 4. Suspension : 5. In regard to 
the acts of the executor or administrator when the partial inter- 
est is created by will. 

§ 368. In regard to forfeiture, it may be said that a partial 
interest in chattels personal is not forfeited, if the person having 
such interest make a conveyance purporting to convey the abso- 
lute interest in the property. ' The party to whom the convey- 
ance is made takes such interest only, as the party making the 
conveyance was entitled to convey ; for a maxim of the law is : 
JVemo potest plus juris ad alium transferre quam ipse habet. 
It is true that, at common law, a conveyance by a tenant for 
life, or years, of a larger estate in land than he had, if by fine, 
feoffment, or recovery, worked a forfeiture of his estate ; but 
that doctrine was founded upon feudal reasons, and was not ex- 
tended to conveyances under the statute of uses, nor to any kind 
of conveyances of chattels personal. 

§ 369. In regard to merger, it seems very clear that, when 
two vested and concurrent interests in either real or personal 
property unite in the same person, the party can have but 
one interest. And so if one having a partial interest acquire 

^Lyde et als. v. Taylor et als. 17 Ala. 270} Jones's ex'rs v. Hoskhis, 
18 Ala. 489. 


the residue of the absolute interest, the partial interest ceases 
to have an independent existence — but that is addition, rather 
than merger, for the two interests added together make the ab- 
solute interest, and therefore there would be as much propriety 
in saying that a person acquiring an absolute interest in the first 
instance had a partial interest, as in saying so in the other case. 
Omne 7najus in se continet minus. It is doubtless true, that a 
party having a prior interest may surrender his interest to one 
having an immediate subsequent vested interest, so that it may 
become merged in the subsequent interest ; but then there must 
be an intention to give it that eiFect, otherwise the subsequent 
party will be entitled by accession. Thus, if there be a limita- 
tion to A for hfe, remainder to B for life, and A surrender to B, 
then if the intention be that B shall merely come into the pos- 
session of his interest, and that A's shall be extinct, it would 
have that effect ; but if no such intention appeared, B would 
be entitled for the life of the survivor. 

The case of Moye et als, v. , was detinue for a negro, 

A gave, by will, several negroes to B for his life, and then to 
the daughters of B. One of the daughters married, and B sent 
the negro in question to live with her. His other daughters 
also married, and he sent some of the negroes to live with each 
one of them. The husband of the daughter first married, died ; 
then B died, and a division took place under the will, leaving 
out the negro in question. Taylor, J. : " All the daughters 
were entitled, in common, to the remainder of this negro. B 
could only pass his interest for life to his son-in-law, not that of 
his daughter. Neither could there be any merger; for the es- 
tate in remainder was not correspondent to the estate for life — 
this latter belonging to the son-in-law, the former to all the 
daughters. Neither did his wife's share in the remainder vest 
in the son-in-law who died ; for a husband is not entitled to the 
remainder of his wife. Had there been a drowning of the life 
estate, the husband of the deceased daughter would have been 


entitled to her share, and the person claiming under him tenant 
in common with the plaintiff, and could not have been sued bj 
them in this action. * 

Subject to what has been said, we cannot but incline strongly 
to the opinion that the docerine of merger is not applicable to 
interests in chattels personal, ^ It seems, at least, to be settled, 
that merger is not favored in Equity even in regard to real es- 
tate, except to promote the intention of the parties. It is said, 
indeed, that mergers are odious in Equity, and never allowedj 
unless for special reasons. ^ Several reasons are suggested for 
the doctrine of merger : one is the maxim, 7iemo potest esse do- 
minus et tenens; another is that it was introduced for the pur- 
pose of deciding on the right between the heirs and the execu- 
tors of a deceased tenant for years who was the owner of sev- 
eral estates, one for years, the other in fee. But whatever was 
the true reason, it was a doctrine of real property, and its exten- 
sion to chattels personal, except so far as above stated, is not 
required, whilst on the other hand such extension would work 
nothing but injustice. And here we mighty with Sir Henry Ho- 
bart, " exceedingly commend the Judges that are curious and 
almost subtile, astuti, (which is the word used in the Proberbs 
•of Solomon in a good sense, when it is to a good end) to invent 
reasons and means to make acts according to the just intent of 
the parties, and to avoid wrong and injury which, by rigid rulesj 
might be wrought out of the act,"* 

§370. In regard to entinguishment : It is defined to be th& 

^2 Haywood, 186. 

3But see Magruder& Nichols v. Stewart's Adm'rs, 4 How. (Miss.) 211. 

^Preston on Merger, (558) Hopkins v. Hopkins, 1 Atk. 592; Philips 
V. Philips, 1 P. W. (41) j see Richards v. Ayres, 1 Watts & Serg. 485; 
Lockwood v. Sturdevant, 6 Con. Rep. 383 ; Gardner v. Aslor, 3 Johns, 
€h. R. 53. 

*Clanrickard et ux. v. Sidney, Hobart. 2776, 


annihilation of a collateral thing or subject in the subject itself, 
out of which it is derived. ' This doctrine is applicable to chat- 
tels personal ; but of course a Court of Equity would never al- 
low it to take place to the detriment of any one having a sub- 
stantive, and not a mere derivative right to such collateral thing. 
Thus, if a legacy be charged on land^ or on chattels personal, 
and the legatee afterwards become owner of suck land or chat- 
tels personal, the legacy, of course, is extinguished. But if the 
legacy were given to A for the support of himself and of his 
children, a Court of Equity would hold the trust in favor of the 
children to be still subsisting. The principle is laid down in 
Pulteney v. Darlington, where the Lord Chancellor said: If A. 
B. has 20,000/. to be laid out in land for his use, he has nobody 
to sue ; the right and the thing centering in one person, the ac- 
tion is extinguished. This point was much considered in the 
time of James the First, with respect to the debtor being made 
executor, and it was determined on the good sense of the case, 
that the rule did not apply, on account of the rights of the cred- 
itors; but if there is no legal or equitable title out against the 
party who is in possession of the fund^ there the rule does ap- 
ply, and the heir cannot say there was a use for him.^ Extin- 
guishment, however, cannot take place unless the interest in the 
subject be as large as the interest in the collateral thing. For, 
if it be not so large, then it falls under the next head. 

§ 371. Suspension is defined to be a partial extinguishment. ^ 
It depends upon the same principles which govern cases of total 
extinguishment. If when the jus in re and the jus ad rem 
are united in one person, the jus ad rem, to borrow a phrase, 
must be "at home;" so, when the interest in the subject is 
smaller than the interest in the collateral thing, must the collat- 
eral thing be extinguished pro tanto. 

»Prest. on Mer. (9.) n Bro, Ch. R. (237,) 

'Preston on Mer. (9.) 


§ 372. In regard to the acts of the executor or administrator^ 
when the partial interest is created by will. 

Upon the death of a testator, the legal title to his chattels per- 
sonal vests in his executor, or in his administrator cum testa- 
menio annexo. The assent of such executor or administrator is 
necessary to perfect the title of the legatee ; except, it is said, in 
one instance, and that is when the chattel is delivered to the 
legatee by the testator in his life-time } and even then the exe- 
cutor or administrator may recover it, if it be necessary to the 
settlement of the estate. The contrary doctrine, however, seems 
to be the simpler and better one^ viz : that the executor or ad- 
ministrator in such case is entitled to the chattel^ regardless of 
the question of assets. 

If the legacy be of a specific thing, and it be in pledge at the 
time, the legatee has a right to call upon the executor or admin- 
istrator to redeem it, and deliver it to him. Upon the same 
principle, says Roper, if a horse were specifically given, which 
the executor refused to deliver, lest there should be a deficiency 
of assetS5 and having used and worked the horse a considerable 
time, he afterwards offered to deliver him to the legatee ; the 
latter may insist upon the value. Or, if the horse had been 
unnecessarily sold, and the proceeds applied in payment of debts, 
the legatee would be entitled to the value of the animal, with in- 
terest from the moment it was so disposed of. ^ The rule, in- 
deed, is, that if the assets do not want the specific legacy, the leg- 
atee is entitled to it, and if it be detained and be injured, the 
legatee is entitled to the value. ^ 

If the chattel specifically bequeathed for life, or other limited 
period, be of such nature as not to admit of adequate compensa- 
tion, as a family picture, a Court of Equity upon its every day 
principles would be compelled to interpose by injunction to pre- 
vent an unnecessary disposition of it. ^ 

'Rep. Leg. 230. H Ves. (567.) ^See 1 Rop. Leg. 331. 


§ 3*73. In regard to the alienation of partial interests, there 
seems to be scarcely any thing worthy of particular notice, since 
the right of alienation and the exercise of it are governed by the 
same principles which govern the alienation of absolute interests. 

§ 374. Every partial interest in chattels is not only liable to 
voluntary alienation, but it is also liable to alienation in invi- 
tum. Thus, in Dean v, Whitaker et aL, sheriffs of Middlesex, 
it was held that, if a party has goods on hire for a term, and the 
sheriff seizes them under an execution against such party, the 
owner of the goods may maintain an action on the case against 
the sheriff, if the sheriff sells the entire property of such goods ; 
but to support the action, he must show that he apprised the 
sheriff that the goods were lent for a term only, in order that 
the sheriff mignt know that he had only a right to sell the qual- 
ified property that the hirer had in the goods. Gurney con- 
tended that the sheriff ought to have seized them in that special 
way. Abbot, C. J. — No. Prima facie the sheriff had a right 
to seize the whole of the goods entirely, as they ostensibly be- 
longed to Greathead, (the defendant in the execution.) 

A non-suit was taken, and upon a motion in Bank to set it 
aside, Bayley, J., said : You should have informed the sheriff 
of the nature of your interest ; then he might have sold Great- 
head's interest only. If the goods were let to Greathead from 
year to year, the sheriff would be entitled to sell the use of them, 
for a year. Gurney. — Does your lordship think that was an in- 
terest which was seizable ? Abbot, C. J. — There can be no 
doubt of that ; but it is very desirable that persons should give 
their notices correctly.^ 

§ 375. But the purchaser, in such case, would not take a 
greater interest than the defendant in execution had,^ unless the 

n Carr. & Payne, 347. 

^McDougal et ah. v. Armstrong, 6 Hump, 428. 


party having the subsequent interest were estopped by some act 
of his own. 

§ 376. In McLaughlin's Adm'rs v. Daniel, it is laid down that 
the purchaser of property sold under execution has a right, in 
Equity — where the property is recovered from him or his vendee 
by virtue of a superior title — to be substituted for the creditor, 
and to have the amount of his purchase money refunded to him 
by the defendant in the execution, or — where the execution was 
against administrators — out of the assets of the intestate. And 
his rights, in this respect, are not affected by bis knowing, at 
the time of the purchase, that the property sold belonged to a 
stranger, and was not subject to the execution. And it was also 
laid down that it is unnecessary for the purchaser in such case 
to show that he has reimbursed his vendee, to whom he alone, 
and not th^ defendant in execution, is liable. ■ 

§ 377. The doctrine of election demands a notice here, since 
that seems to be an equitable mode of alienation, and is as ap- 
plicable to partial as it is to absolute interests in chattels per- 
sonal. A case of election may arise under a deed, as well as 
under a will.^ 

§ 378. The general doctrine is, " that it is sufficient to raise 
a case of election in Equity, that the testator does dispose of 
property, which is not his own, without any inquiry, whether he 
did so knowing it not to be his own, or whether he did so under 
the erroneous supposition that it was his own. If the property 
was known not to be his own, it would be a clear case of election. 
If it was supposed erroneously to be his own, still there is no 
certainty that his intention to devise it would have been changed 
by the mere knowledge of the true state of the title ; and the 
court will not speculate upon it."^ 

-^8 Dana, 182; see also Price et als. v. Boyd et ais. 1 Dana, 436, and 
cases cited. ^Freke v. Lord Barrington, 3 Bro, C. C, 285 & n. 

32 Story-s Eq. g 1G93. 


§ 379. A party cannot be put to his election, unless there is 
a clear intention of the donor that he should not enjoy his own 
property, and also the property given to him. Hence it is, that 
a general legatee cannot be put to his election, for it cannot ap- 
pear from a general gift that a specific thing was intended to 
pass. ' 

§ 380. A case might arise, however, in which even such a 
legatee would be put to his election, as a gift "to A of all the 
residue of property which I have possession of, and which I 
claim," would be as strong as a specific bequest of a thing, 
which the testator claimed and possessed. 

§ 381. The courts have difi*ered in regard to the admissibility 
of evidence, under a general gift, to show that the donor intend- 
ed a particular thing to pass. In Blake v. Bunbury,^ Lord 
Commissioner Eyre said, " that putting devisees under a will to 
an election is a strong operation of a Court of Equity, and that 
the intent of the testator to dispose of that which is not his 
ought to appear upon the will, with such explanation, however, 
of the prima facie appearance as the law admits, and that it 
ought to appear by declaration plain or necessary conclusion 
from the circumstances ; and no man ought, under pretence of 
this rule, to be spelt or conjectured out of his property." In 
Druce v. Denison, however, a statement of property, written by 
the testator, and his books and accounts, were admitted as evi- 
dence that he considered property his own, though not strictly 
his ; and in Pulteney v. Lord Darlington, evidence v>*as also ad- 
mitted to show that the property not belonging to the donor was 
included in a general gift. ^ In the second case last above cited, 
the Lord Chancellor said that he made the decision, bowing to 

'Forrester V. Cotton, 1 Eden (532); Crostwaight et als. v. Hutchin- 
son et als, 2 Bibb. 407: McGiniiis et al. v. McGinuis, 1 Kelly, 496. 
21 Ves. 523 ; 4 Bro Ch. Rep. 24. sg yes, (397.) 


authorities, rather than being satisfied upon the rules of evi- 
dence as they were formerly understood. The case of Mann v. 
Mann's Ex'rs^ seems also to be against the admissibility ; aSj 
indeed, does the general rule itself. In Stratton v. Best, John 
Light sufiered a recovery of the whole of the manor of B, though 
he was entitled only to a part of it ; afterwards he made a will^ 
giving all his real and personal estate in general terms, and the 
question was whether, as the testator supposed himself entitled 
to the whole manor which was proved by evidence, that was suf- 
ficient to make a case of election. The Lord Chancellor said : 
But to do this I must say, that evidence, dehors the will, of tes- 
tator's opinion at any time may be produced; and I do not think 
that is the law of the court. All the argument in Noys v. Mor- 
daunt, and the whole suit of cases upon this siibject, have been 
turned upon the expressions of the will. If I was to receive 
evidence of the testator's fancy, it would introduce a very des- 
perate rule of property in this court. "^ 

§ 382. Hence it is, also, that if a donor has an interest in 
the chattel, it will be presumed that he intended to give no more 
than his interest, unless the terms of the gift are so strong that 
the presumption cannot arise under them. 

§ 383. Nor can a party be put to election if he had no inter- 
est vested or contingent in the thingj but acquired an interest 
subsequent to the gift. ^ 

§ 384. It is said that a feme covert, an infant, or a lunatic, 
will not be bound by an election. '^ The case of Frank v. Frank ^ 
is cited as authority for the positon. In that case, Edward 

U Johns. Ch. Rep. 231 ; McGinnis v. McGinnis, 1 Kelly, 496 ; contra 
Haydou v. Ewing's Ex'rs, 1 B. Monroe, 113 ; so seems 2 Bibb. 407. 
21 Ves. 284. 

^Crosbie v. Murray, 1 Ves. (561.) 
*2 Story's Eq. § 1097. ^3 ]y[y, & Cr. 171. 


Frank — manj years after his marriage — executed a deed, in 
pursuance of a power, by which he appointed 400/. to be raised 
and paid after his decease, to his wife, for her life, with the 
jisual powers of distress and entry in case of non-payment, and 
such annuity to be for her jointure, and in lieu of dower. The 
case was decided upon the statute of 27 H. 8, c. 10, by which 
it was provided, ^' that in case of a jointure made after mar- 
riage, the wife, if she outlive her husband, shall be at hberty, 
after the death of her husband, to refuse to accept the lands 
given her in jointure." And the Lord Chancellor said, ^' that; 
the question was never put to Mrs. Frank in the shape of elec- 
tion at all." Mr. Cook, who argued for the plaintiff, said : — 
^' My proposition is^ that, in this court, a married woman is 
competent to make such an election, and will be bound by it, 
•wherever the relative values of the two interests appear to be 
•uncertain, and it is or may be for her advantage to exercise her 
voption. Thus, in Ardesoife v. Bennett,' a feme covert was held 
to have elected, by her acts, to take under a will, in opposition 
to the interest she acquired as the testator's heiress at law ; and 
that was a much weaker case, for no formal consent was ever, 
given. So in Lady Cavan v. Pulteney,^ Mrs. Pulteney was 
directed, in her husband's lifetime, to make her election to take, 
either under the will of Sir W. Pulteney, or under the will of 
General Pulteney ; and if she should elect to take an estate tail 
under the former, then it was declared that she should not be 
entitled to any estate under the latter ; and it was subsequently 
held that certain proposals laid by her before the Master amount- 
ed to an election to take under the will of Sir W. Pulteney.^ 
In Wilson v. Lord Townshend,* it was decided that a feme 
covert was bound to elect between a life annuity given by will, 
to her separate use, charged upon a devised estate, and a title pa- 
ramount to a part of the same estate ; and it was there laid down 

12 Dick. 463. 22 Ves. 544. 93 Ves, 384. " 2 Yes. (693). 


by Lord Loughborough, referring with approbation to the lan- 
guage of Chief Justice DeGrej, in Lord Darlington v. Pulte- 
ney, that, " election applies to interests of married women, in- 
terests immediate, remote, contingent, of value, and liot of 
value," The same doctrine is recognized in Vane v. Lord Dun- 
gannon. ' 

Mr, Wigram, in reply, said : In all the cases referred to by 
Mr. Cooke, the question was ripe for election; for both the in- 
terests had accrued in possession, and it was necessary, for the 
sake of third parties interested adversely, that the feme covert 
should then exercise her option. The present,: however, was 
not a case of election between jointure and dower ; but between 
jointure, which is a provision which is to arise after the hus- 
band's decease, and an allowance for maintenance during his 
lifetime. The law on this subject is ably discussed by Mr 
Roper. ^ 

In Lady Cavan v. Pulteney,^ the Lord Chancellor quotes, 
and decides in accordance with, the language of Chief Justice 
DeGrey, " her being a /erne covert has no effect; her disability 
is not like that of an infant." 

§ 385. It is very clear that a married woman cannot, in such 
case, take the chattels given to her, and at the same time keep 
her own, that has by the same instrument been given to another 
person. In Wilson v. Lord Townshend, it is said : "If a speci- 
fic thing belonging to one of the legatees is by the will given to 
another person, the legatee cannot hold both. He must make 
himself competent to take the legacy, by giving up that specific 
thing. Therefore the court says, there shall be an election ; 
and gives an opportunity of electing ; and will not easily hold 
the election concluded. But if the party is under restraint^ 

'2 Scho. & Lef. 118.. H Roper Hus. & Wife, (by Jacob) 348. 

32 Ves. 560. 


and cannot accomplish that, it is the fnisfortune of the party ; 
but the consequence is, that while he continues in that situation, 
his claim must he barred ; for it is directly contrary to the in- 
tention and distribution of the property. That is in point of 
law implied.'^' If a married woman cannot elect, she cannot 
hold the legacy, and also such property of hers as has been 
given away, for a Court of Equity will lay hold of the property 
given to her, as it would if it were given to a person not under 
disability, and out of it make satisfaction to the disappointed 
legatee.^ This is the rule under a will, and also under deeds, 
which are not the result of contract — as marriage settlements. 
But under marriage settlements, a;nd other like deeds^ the rule 
is not compensation, but forfeiture on the pBrt of the donee 
bound to elect. ^ 

§ 386.- It being established, then, that married women can 
elect, the question is. How must they make their election ? 
There seems to be no difference between a feme covert and a 
feme sole in this respect, for it does not appear that any private 
examination is required by the court ; and though there was a 
reference in one case to a Master to inquire which interest would 
be most beneficial, yet the Lord Chancellor afterwards said that 
he laid no stress upon the report of the Master.* 

§ 38T. The question of election cannot arise under a gift to 
married woman so as to affect her chattels personal, unless they 
be such a;s she has to her separate use, or such as the husband 
has not reduced into possession. If the chattels are present 
interests which the husband has not reduced into possession, but 
which he has a right to reduce into possession, then the right of 
election would be in him alone. If the chattels are settled to 

^2 Ves. 697. 2Lord Darlington v. Pulteney, 3 Ves. 384. 

^Green v. Green, 2 Mer. 94; 19 Ves. &QQ. 
*Lady Cavan v. Pulteney, 3 Ves. (386.) 


her separate use, then she is quoad those chattels a feme sole 
in a court of equity. We may fall back, therefore, upon the 
doctrine of that court in regard to the capacities of a married 
woman to control and dispose of her separate estate, and that 
settles the question, as we have stated, that there is no differ- 
ence in regard to election between a feme covert and a feme 
sole-j so far as we are at present concerned. 

§ 388. If a person capable of electing choose "without a 
clear knowledge of both funds,"* the election will not prevent 
such person from electing the other fund afterwards, unless an- 
other person has been placed in a condition by reason of the 
choice, from which he cannot, be restored to the situation in 
which he was ; or unless the lapse of time has been so great, 
that a Court of Equity will not go into the inquiry. ^ 

§ 389. It may be well to say, that the situation of the other 

party, at the time of the gift, is to have the chattels given to him, 

or to have the other interest sequestered quosque till satisfaction 
be made to him. 

§ 390. Whether a party has elected, seems to be a question 
of fact in each particular case ; except, of course, in those cases 
in which the court presumes an election from the situation of the 
other party, or from the lapse of time. 

In Butricke v. Broadhurst, plaintiff's husband by his will— 
of which she was sole executrix — gave all his estates, both real 
and personal, to trustees, upon trust, to permit her to receive 
the rents and profits for life, provided she did not marry again. 
She proved the will. The trustees never acted ; and she receiv- 
ed the rents and profits for five years after his death : and then 
filed a bill claimino; to elect to take an interest in a trust fund 
of .£2000, under her marriage settlement, instead of the estate 

HVhistler v. Webster, 2 Ves. 371 ; Wake v. Wake, i Ves. (337.) 
n Story's Eq. ^ 1097. 


under the will. The Solicitor General, who argued in behalf of 
the plaintiff, cited Lord Beaulieu v. Lord Cardigan, and the 
Lord Chancellor said: I thought Lord Northington tolerably 
well founded in that case ; but it was determined otherwise in 
the House of Lords, who decided that the right of election last- 
ed fifty years. But all that was determined by it was, that, 
under the circumstances, it may last till the whole affair is wound 
up, and the trusts executed. I agree, now, that if she had filed 
a bill, stating, that she did not know the state of the fund, and 
desiring to have the debts and legacies paid, and the property 
cleared, that she might elect to advantage, she might have done 
so. So, if the other parties had filed a bill, it could only have 
been to force her to make her election. But here having taken 
possession under the will, and the estate being a free fund from 
the beginning, I cannot think of a principle upon which the court 
can say she is now competent to elect. The bill must be dis- 
missed ; but I wish it to be understood, that it turns upon th« 
particular circumstance, that the bill was filed without any 
ground ; and no suggestion that the real or personal estate is in 
such a situation as to render it doubtful what the result would be. 
She consequently has laid no ground that entitles her to elect 
after enjoyment for five years "' Brown, in his report of the 
case, states that the Lord Chancellor said ; That no lien could 
be drawn from mere length of time ; but it must be from cir- 
cumstances shewing the intent of the party ; that he should 
think the receiving of the rents, much less the personalty offi- 
cially, could not bind ; but under all the circumstances of the 
present case, the plaintiff filing her bill for a transfer of the 
stocks without shewing any ground, must be presumed to have 
made her election.* 

In Wake v. Wake, it was held that the receipt of a legacy 

n Yes. 171. - 23 Bj-o, ch. Rep. 90. 


and an annuity under a will for three years, did not prevent the 
legatee from electing, it being presumed that she did not act 
with a full knowledge. ' 

§ 391. It may be mentioned in this connection, that it is gen- 
erally held that a married woman may alien a partial interest, 
as well as a general interest — given to her separate use— unless 
she is restrained by the instrument creating it; but in Soutli 
Carolina, it is held that she cannot charge, encumber, or alien 
her separate property, except so far as she has power by the 
instrument creating such estate,^ and that seems to be more 
consistent with the idea upon which a Court of Equity interpo- 
ses to sustain such an interest. 

§ 392. In regard to the transmission of partial interests in 
prcBsentij it may be said that if the interest does not extend be- 
yond the life of the party entitled to the interest, there cannot, 
of course, be any transmission, since there is nothing to trans- 
mit. If, however, the interest does extend beyond the life 
of the party, then it is transmitted precisely in the same man- 
ner as an absolute interest. Thus, if the interest be for twenty 
years, and the party die after ten years have expired, the re- 
maining years pass to his representatives. 

§ 393. If, at common law, land had been conveyed to A for 
the life of B, and A had died in the lifetime of B, the heir of 
A was not entitled as heir, because the estate was not of inher- 
itance ; neither was the administrator entitled, because the in- 
terest was not personalty. But under such a gift of chattels per- 
sonal, the personal representatives of A would be entitled to the 
unexpired interest. 

^1 Ves. 335. For another case, see the Earl of Northumberland v. 
The Marquis of Granby, 1 Eden. 489. 
'^Reid v. Lamar, 1 Strobh. Eq. 27. 


§ 394. We come now to the consideration of the destructibili- 
tj of future interests in chattels personal ; but having incident- 
ally, in other places, said nearly all that need be said upon that 
subject, we need do little more here than assert the general rule 
to be that they are as indestructible as executory devises of real 
property. The principles, which have been discussed in their 
application to partial interests in prcssenti^ seem to furnish an 
easy solution to like questions arising under this head. Thus, 
if a horse be given to A for life, remainder to B, and the execu- 
tor sell the horse unnecessarily, B will be entitled to his value 
?ifter the death of A. So, if a family picture be given to A for 
life, remainder to B, a Court of Equity would, interpose by in- 
junction in favor of B, in the same case that it would interpose 
upon the prayer of A . Nor would it make any difference that 
the interest of B was contingent, instead of vested, nor that it 
was a conditional limitation, or a springing interest, instead of 
a quasi remainder. For in the first case, B would be entitled 
to the value of the horse at the time when he would have been 
entitled to the horse; and in the second, a Court of Equity 
would be equally bound to protect any kind of future interests 
in chattels personal. 

§ 395. Therfe are two points, however, that require investi- 
gation here : 1. The destruction of future interests by estoppel 
in pais:: and 2. The barring of them by the statute of limita- 

§ 396. First, in regard to the estoppel, the general rule is, 
that whenever a person makes an admission which induces an- 
other to act, the person who makes the admission is bound by it 
quoad that act. It matters not whether the admission be made 
by words, in writing, or by action merely. 

In Cox v. Buck, a testator bequeathed his negroes to his sons, 
Peter and Harmon, to be equally divided between them at a .time 
appointed, with the following limitation over : "And if either of 


my two sons should die without lawful issue^ that my other son 
shall have his part of my property." Jim and Joe, two of the 
negroes, had been allotted to Harmon, and had been sold by the 
sheriff, by virtue of executions against him. Harmon died with- 
out leaving issue, and an action of trover was brought by Peter 
against the purchaser. Peter had purchased Jim at the sale, 
and had sold him to Buck ; the plaintiff wa^ therefore concluded 
as to Jim. The controversy was in regard to Joe, and one of 
the assignments of error was, in effect, that, even if the plain- 
tiff, by his representations, acts, or conduct, did mislead the de- 
fendant respecting the title to the slave, and did encourage the 
defendant to purchase, by inducing the belief that he would ac- 
quire an absolute property, yet the plaintiff cannot be estopped 
from recovering unless there be proof of positive fraud. An- 
other assignment was that the defendant must " prove some 
positive act of the plaintiff, which amounted to a relinquish- 
ment of his contingent interest in the negro, at the sale." 

Frost, J. in delivering the opinion of the court, said : The 
principle on which the plaintiff is held bound by his acts, con- 
duct, or representations, in reference to the subject of the sale^ 
is not derived from the equity doctrine, which has been relied on 
in the argument, though it does receive support and illustration 
from that quarter. It is of common law origin, and results frora 
the rule that parties to a suit are bound by admissions, against 
their interest, respecting the subject of the action. Such ad- 
missions, 'prima facie conclusive against the party who makes 
them, may be explained or qualified ; but if evidence for this 
purpose is introduced, the whole is submitted to the jury, and 
the liability of the party decided, by their verdict, as a question 
of evidence. 

" Such admissions may be proved by the acts and conduct of 
the parties, as well as by ;their express declarations. If the 
plaintiff had, in this case, declared to <the defendani^j that Joe 


Was the absolute property of Harmon Cox ; or that he would not 
assert his contingent titlej thereby admitting the validity of the 
defendant's title in case he purchased, it would be conceded the 
plaintiiF could not recover. But a party may as effectually 
make an admission by his acts and conduct, as by his expres- 
sions ; and as he may be charged by his express declarations by 
any one who heard them, so he may be charged with admissions 
inferred from acts and conduct, by any who witnessed or ob- 
served them. A tenant, by his entry, is estopped to deny the 
title of his landlord ; one who takes possession of the effects of 
a deceased person shall not be allowed to deny he is executor, 
A person shall be charged as partner who permits his name to 
be used in the firm ; and a man shall be liable for the con- 
tracts of a woman ty horn he holds out to the community as his 

"Many cases, at common law, can be cited to show that a party 
who has, expressly or by his conduct, waived his claim or title 
to property, shall be estopped from asserting it against a party 
who has acted on the faith of such admission. A constable came 
to levy on one Benedict's property, and Stephens pointed out 
lumber, one fifth of which, he said, belonged to Benedict; where- 
upon the constable levied and sold, and Baird purchased. It 
was held Baird might recover the one-fifth in trover against 
StephenSjthough, in fact, the whole lumber belonged to Stephens. * 
When the assignee of a chose in action purchases it, after a pro- 
mise made in his hearing, before the assignment by the debtor 
to the assignor, that he would pay it, the debtor shall be estop- 
ped to set up any defence against the assignee. A surveyor 
running land, and bounding it on one of the lines of a tract of 
his own, admits that the land was vacant up to his line at the 
time of the survey ; and having made a survey of the adjoining 
land for the plaintiff, he shall not afterwards be permitted to 

^Stephens v. Baird, 9 Cow. 274, 


extend his lines so as to include a part of the tract surveyed for 
the plaintiff, though the plaintiff had not obtained a grant. * 

"In Heane v. Rogers,^ Bayley, J., delivering the opinion of 
the court, says, " there is no doubt the express admissions of a 
party to the suit, or admissions implied from his conduct, are 
evidence, and strong evidence against him ; but he is not estop- 
ped or concluded by them, unless another fierson has been in- 
duced by them to alter his condition, and in that case the party is 
estopped, from disputing their truth v/ith respect to that person, 
(and those claiming under him,) and that transaction." In 
Pickard y. Spear, ^ the law was declared in nearly the same 
terms by Denman, C. J. 

" The .cases which have been adduced, and many analogous 
cases which might be cited, did not proceed on the ground of 
fraud, except perhaps the case from Bay j and in none was evi- 
dence of positive fraud required to charge a party with his ad- 
missions. By positive fraud, must be understood a wilful and 
corrupt purpose, and intention to deceive and injure. Fraud^ in 
that degree, can seldom be proved ; and if relief were confined 
to such cases, it would be too limited for any practical good. 
The l§,w enjoins sincerity and candor in dealing. In giving prac- 
tical effect to this injunction, the common law, as all human law, 
must be imperfect^ for the sphere of morality is more extensive 
than the limits of civil jurisdiction. But to every extent, com- 
patible with the interests and convenience of society, it enforces 
the duty of good faith. The law arrests not only bare-faced 
fraud, pursuing its object without disguise^ but detects its agency 
in the effect, though the transaction wears an honest aspect. 
When wrong and injustice would be the result, without curious 
inquiry into the motives or direct imputation of an evil purpose, 
the transaction is treated as if it were fraudulent. The mis- 

»Tennant v. Terry, 1 Bay, 239. 29 Barn. & Cress. 577. 

n Ad. & Ell. 469. 


chief is prevented or repaired without inquiring whether it was 

§ 39T. The court, though unanimous in regard to the law, 
were equally divided on the question whether the evidence was 
sufficient to sustain the verdict, and they decided therefore to 
order a new trial. 

§ 398, The opinion in this case deserves commendation, not 
only for the exposition of the law applicable to the facts, but 
also for the high tone of its morality ; but it may be doubted 
whether the principle involved " results from the rule, that par- 
ties to a suit are bound by admissions against their interest 
respecting the subject of the action." It seems rather to be 
nothing more than an application of that broad principle, which 
the common law has adopted as a maxim : JVullus commodum 
caper e potest de injuria sua propria. 

§ 399. The principle is recognised in Bird v. Benton, in which 
it was held, that a sale or pledge of property by one who has no 
title, in the presence of the owner, without objection on his part, 
estops the latter from impeaching the transaction, on the ground 
of his better title. ^ 

In West V. Tilghman,^ however, the authority of that case is 
denied, and it is said to have been overruled by Governor v. 
Freeman,'' and Lentz v. Chambers.^ But, Avithout going into 
the subsequent decisions, we may hold on to the better doctrine 
of the old case, and we may assent to the position in Governor 
V. Freeman, that though a person who stands by and sees his 
property sold without making objection is precl-aded from set- 
ting up his title, yet his silence cannot be construed to be a tor- 
tious and illegal act as relating to the rights of third and absent 

'3 Srrobh. (Law) Rep. 367. ^2 Dev. (Law) 179. 

39 Iredell, 165. M Dev. 472. ^5 iryjell, 587. 



[n Copeland v. Copeland, the court, after layicg down the 
general rule, and citing many cases, say : In this position thus 
established, it must be observed, that several things are essen- 
tial to be made out, in order to the operation of the rule ; the 
first is, that the act or declaration of the person must be wilful, 
that is, with knowledge of the facts upon which any right he may 
have must depend, or with an intention to deceive the other 
party; he must, at least, it would seem, be aware that he is giv- 
ing countenance to the alteration of the conduct of the other, 
whereby he will be injured, if the representation be untrue ; and 
the other must appear to have changed his position by reason of 
such inducement." ' 

400. But this does not seem to be altogether satisfactory, for 
nothing more seems to be necessary than — 1. That the person 
standing by has legal capacity to act ; 2. That he knows he has 
a right, or knows the facts which give him a right which is tan- 
tamount, ^ since ignorantia juris neminem excusat; 3. That 
the purchaser is thereby deceived. If, therefore, B know the 
facts and A say that he has no title, the mistake or wilful mis- 
representation of the law by A will not estop him,^ unless it be 
fraud; that is, unless B had a right to rely upon his statement. 

§ 401. It may, at first, seem to be a qualification of the gen- 
eral rule that a person will not be estopped by reason of misrep- 
resentation or concealment of his title from setting it up against 
a mere volunteer ; but it is in fact no qualification, since then 
the concealment or misrepresentation is but damnum absque in- 

§ 402. The law, however, will not permit an estoppel to be 
set up to defeat it. If, therefore, the law reojuires the legal ti- 

»28 Maine, 540. ' ^ib. 540. 

'Brewster v. Striker, 2 Comstock, 19. 
♦See Jones v. Sasser, 1 Dev. & Bat. 452. 


■tie to property to be passed bj deed, it cannot pass by parol 
estoppel." In such case, the party deceived may maintain an 
action on the case and recover damages, if he had a right to rely 
upon the conduct or representations of the other party ; or he 
may complain in Equity, which will treat the guilty party as a 
trustee, and compel him to convey the interest which he ought 
to have disclosed.^ 

^ 403. These estoppels bind all parties and privies, and un- 
like technical estoppels, need not be pleaded. But a party may 
be estopped in one capacity and not in another. Thus, a party 
who would be estopped as an administrator, would not be estop- 
ped as guardian.^ 

§ 404. In regard Jo the statute of limitations, the general rule 
is, that it does not commence running until the time when the 
right to the possession of the property arriv^es. * It seems, how- 
ever, to be true that if a future interest in a chattel be given by 
will, and the title of the executor be barred by the statute of 
limitations before his assent to the bequest, the title of the party 
to whom such future interest is given is also forever barred. 

The case of Moore v. Barry may be cited with advantage in 
this place. In that case General Moore loaned a slave to his 
son-in-law, the defendant, and afterwards bequeathed the slave 
to the plaintiff. General M^Dore died in 1822, and Dr. Moore 
:and another person qualified as executors of his will. In June, 
1823, the executors demanded the slave of the defendant^ who 
refused to surrender her. The action was commenced in Sep- 
tember, 1827, by Dr. Moore, as guardian ad litem of the lega- 
tee. There was no evidence that the executors had ever as- 

• »See lb., Pickard v. Sears et aL, 6 Ad. & El. 469; Knight v. Wail, 2 
Dev. & Bat, 125; Smith v. Mundy, 18 Ala. 182. 

2See Jones v. Sasser, 1 Dev. & Bat, 464-5. 

^Yarbroiigh v. Harris, 3 Dev. 40. 

•*Davenport V. Prewett's Adcn'r, 9 B. Men. 103. 


sented to the legacy ; but it was contended for the plaintiff, that 
such assent was to be implied from the fact, that one of the ex- 
ecutors had become guardian ad litem of the legatee for the pros- 
ecution of the action to recover the slave. And it was urged 
that the assent whenever given vested the title, by relation, at 
the time of the testator's death ; and the legatee, being an in- 
fant, his title was not affected by the statute of limitations^ 
Johnson, J., in delivering the opinion of the court, said: The 
only question involved in the present motion is, whether the right 
of the plaintiff to the slave in dispute is protected by the saving 
in the statute of limitations in favor of infants. The authori- 
ties all agree that the assent of the executor is indispensably 
necessary to give effect to a legacy of chattels, whether it be 
general or specific. — Co. Lit., Ilia. Until he does assent, the 
right of possession necessarily abides in him, and he alone can 
maintain trover for the wrongful conversion. — Gordon v. Har- 
per, 1 T. R., 11. 

" The fact relied upon to show the assent of the executors to 
the legacy in question, and the only one, is, that Dr. Moore, by 
w^hom the plaintiff sues as guardian, is one of the executors; and 
hence his assent to the legacy is attempted to be inferred. Con- 
ceding, for the present, that it furnishes plenary proof of the as- 
sent, yet more than four years had elapsed between the conver- 
tion of the negro by the defendant, and the time of the assent. 
The right of the executors was then barred, for the reasons be- 
fore stated, and all that they could assent to, was the right to 
bring a barren and unprofitable action. 

" It is contended, however, that the legatee derives his right 
from the will, and not from the assent of the executor ; and that 
upon the assent of the executor the right has relation back to the 
death of the testator ; and henee it is concluded, that the title to 
the slave in dispute vested in the plaintiff at that time, and that 
being then, and still, an infant, he is protected by the statute. 
•For many purposes, a legacy may well be said to vest in the 



legatee by relation back to the death of the testator, although 
the possession and enjoyment is postponed until the assent of the 
executor is obtained. He is entitled, for instance, to the profits 
arising from it, and the executor is accountable to him for his 
management of it ad interim; and so for many other purposes. 
These are mere equities, and may well exist consistently with 
the legal rights of the executor. But to suffer it to operate by 
relation back, as an immediate investiture of the legal estate, is 
wholly inconsistent with the acknowledged rights of the executor 
and creditors. That it does not, for the purpose of barring the 
operation of the statute of limitations, is clearly settled in the 
case of Wych v. East India Company, 3 P. Wms. 309. There 
administration of the estate of the plaintiff's father was granted 
to A, until the plaintiff, then an infant, should arrive at twenty- 
one years of age, ad usum et commodum of the infant. The 
administrator neglected to sue on a contract, by which the de- 
fendants were bound to the intestate ; but the son filed his bill 
against the defendants, within six years after he came of age, to 
which the statute was pleaded. In sustaining the plea, the Lord 
Chancellor remarks, that he " could not take away the benefit 
of the statute from the Company, who were in no fault, since 
their witnesses may die, and their vouchers be lost." And as 
to the trust, that was only between the administrator and the 
infant, and did not affect the Company. And he puts, by way 
of illustration, the case where there is an executor who neglects 
to bring his suit within the time prescribed by the statute ; and 
Reg. Lib. B. 1733, fol. 448, is cited for authority, that the 
residuary legatee would be barred- ' 

§ 405. If the executor assent to the legacy, and the legatee 
accept it before the statute has barred the right of the executor 

'1 Bailey (Law) 504. See same case for assent of executor, accep- 
tance of legatee — 50Q. 


to recover it, then it seems that tlie statute would not commence- 
running against bim until the time for his interest to fall into 
possession had arrived. 

§ 406. We come now to the alienation of future interests in 
chattels personal. 

§ 407. And, first J of those that are vested. Such future in- 
terests may be conveyed by deed or will. A parol gift of such 
an interest would be invalid ; but a parol transfer of such an in- 
terest, for a valuable consideration, and in compliance with the 
statute of frauds, would pass the legal title, though a Court of 
Equity would not enforce such a contract, if it were otherwise 
unobjectionable ; unless the remedy at law were incomplete. * 

§ 408. In Knight v. Leak, Gaston, J., in delivering the opin- 
ion of the court, said : We believe that the rule of law is, that 
all vested lesral interests of the debtor which he himself can le- 
^ally sell, in things which are themselves liable to be sold under 
a Jl. fa., may also be sold. Thus the goods of a pawner or of 
a lessor, in the hands of a pawnee or lessee, may be sold by the 
sheriff, subject to the present right of possession of the pawnee 
or lessee. — 2 Tidd's Prac, 8th edit. 1042, (a). Such has been 
the common practice in our State, and although w^e are not aware 
of any of express adjudication affirming it, we have never heard 
of any judicial disapprobation of it, and we are not at liberty to 
hold it as against law. How the sherifT is to cause the posses- 
sor and temporary owner to produce the property at the day of 
sale, is an inquiry with which we need not now embarrass our- 
selves. ^ 

§ 409. It seems, however, to be well settled principle that the 
officer selling any interest in chattels personal must have them 

^2 Story's Eq., § 718. (a) (1003.) 

^2 Dev, & Bat. 135 ; Carter v. Spencer, 7 Iredell, 14. 


in such a situation that the bidders can see them and have an 
opportunity of examining their quality and value at the time of 
sale, ^ The locality of the chattels is a question of fact ; but 
whether they are present or not, is a question of law." It fol- 
lows from this necessity imposed upon the officer, that if he can 
levy and sell a future interest, he has a right to seize the pro- 
perty itself; for, quando aliquid mandatur, mandatur et omne 
per quod pervenitar ad illud, 

§ 410. But the general rule is not without qualification ; for, 
as said by the court, in Gift v. Anderson, though it be unques- 
tionable as a general rule, that personal property cannot be sold 
under process by a sheriST, or other officer, without its actual 
presence at the time of the sale, yet it is equally true that this 
restriction is intended for the benefit merely of the owner ; and 
if he agree that it may be done otherwise, he is not injured, and 
has no cause of complaint.^ The language of the court seems 
to be rather too strong in the assertion that the restriction is 
merely for the benefit of the owner, for there may be other cred- 
itors, and the restriction is doubtless for their benefit also; * but 
even in that case the complaint must be theirs, and not the own- 
ers, since volenti non Jit injuria. The plaintiflf in the execution 
himself would also seem to have a right to move that the sale be 
set aside, if he were not estopped by his consent. 

§ 411. In this State, it is held that the purchaser takes a title 
under such sale, subject to be defeated only by the setting aside 
of the sale by the court from which the execution issued;^ but 
in New York it is held that no title passes in such case. ^ The 
first seems to be the better doctrine. 

^Ainsworth v. Greenlee, 3 Mur. 470: Sheldon v. Loper, 14 Johns. 
352; Smith v. TritL 1 Pev. & Bat. (Law) 241 ; McNeely v. Hart, 8 Ired. 
492. 2jvicNeely v. Hart, lb. ^5 Hump. 577. 

4See Foster v. Mabe, 4 Ala. 406. ^Ib. 

«Sheldon v. Loper, 14 Johns. 352. 


411a. The rule that a deed shall be construed most strongly 
against the grantor, is held to be inapplicable to a deed made 
officially by an officer, because his deed operates not by virtue 
of ownership, but by virtue of the execution, levy and sale» 
Therefore nothing can pass except what was subject to the exe- 
cution — was levied on under it, and was sold under the levy. ' 
If there be any case, said the court in Knight v. Leak, calling 
for the rigorous application of this rule, it is when reversionary 
interests — rights to future enjoyment — are disposed of by judi- 
cial sales. These are not the usual subjects of such sales. 
Their existence, nature, limitations, are not inquired into, unless 
attention be explicitly called to them. Without a distinct an- 
nunciation that such interests are exposed to sale, every one 
understands that the immediate ownership, limited or absolute, 
is that for which a price is demanded. ^ 

But it does not seem to be satisfactorily settled by authority, 
that a future vested interest in chattels personal is liable to be 
levied on and sold under execution at law. 

§ 412. The authorities referred to by Tidd do not sustain the 
position that goods may he sold subject to the right of a lessee, 
under an execution against the general owner. 

§ 413. In Dyer it is said : In trespass, that beasts let for 
years cannot be taken in execution for a debt of the lessor, upon 
a recovery against him. — Br. Execution, 107. Unless it be in 
the case of the King, by Brian. ^ Comyn so lays down the law 
in his Digest, and cites Dyer as his authority.^ In a note, 
however, it is said : But subject to the right of pawnee or lessee, 
the goods may, it seems, be taken in execution, and Bro. Abr., 
tit. Ex. pi. 107, is cited for authority.^ This latter doctrine 

'Sheppard v. Simpson, 1 Dev. (Lav/) 240, 

^Knight v. Leak, 2 Dev. & Bat. 136. ^Dy. 67 6, note (20.) 

^Comyn's Dig., tit. Ex. C, 4. ^Ib. note (i/.) 


is also laid down in Bacon's Abr.,^ and Strodes v. Caven^ is 
there cited by the learned American editor, as an authority in 
support of the position. 

§ 414. In Dargau and Bradford v. Richardson, there was a 
bequest of chattels personal to the testator's wife for life, re- 
mainder to his children. The executor assented to the legacy, 
and afterwards one of the children assigned his interest. Sub- 
sequently, by an agreement between the parties interested, the 
property was divided, and two negroes, Dinah and Bob, were 
allotted to John R. Singleton, the party who had previously 
transferred his interest. An execution against John R. Single- 
ton had been lodged in the sheriff's office in 1828, and immedi- 
ately after the allotment, it was levied upon Dinah and Bob, 
and they were sold by virtue of it. The assignees of John R. 
Singleton brought an action of trover. Butler, J. in delivering 
the opinion of the court, said ; What was John R. Singleton's 
interest ? He had an undivided and indefinite interest in per- 
sonal chattels of which another had the exclusive right and do- 
minion during life. The question now presents itself: Could 
this undivided interest in remainder be the subject of levy and 
sale under aj^./a., at any time before the date of the plaintiff's 
assignment 1 The court is of opinion it could not. In England 
such an interest would be regarded as nothing more than a trust 
in the one having the interest for life, for those in remainder. 
Mrs. Singleton would be regarded as a trustee, with the legal 
interest in her, holding the undivided interest in her for the bene- 
fit of the children. If so, it would be a mere equity which might 
be assigned, but which could not be levied on and sold under a 
Ji. fa. The writ of ^. fa. is an execution at common law, di- 
rected to the sheriff, commanding him of the goods and chattels 
of A B, to levy, &c. ; the essential words of which are " quod 

'Tit. Ex. C, 4, 23 Watts, 258. 


fieri facias de bonis et catallis,^^ To make a levy under such 
a writ, the sheriff must take into his own proper possession the 
goods and chattels, otherwise he would have no such title in 
himself, as to enable him to make a delivery to a purchaser at a 
public sale. Delivery is essential to perfect the sale of any per- 
sonal chattel ; and it is as much so in the case of a sale by a 
sheriff as by any one else : and perhaps more so. A fi, fa. 
can have no lien on any interest in personal property, unless it 
be of such an inforcible character as to authorise the sheriff to 
make a levy and take the chattel into his possession, with an 
ability to make sale and delivery of it to a purchaser. These 
elementary principles are fully sustained, not only by English 
authorities, but by the adjudications of our own State. In the 
case of Devon v. Kemp, decided May Term, 1837, Mr. Justice 
Earle lays down this position : " There can be no lien on a mere 
right which cannot be levied on and sold." In this case, one 
Hall rented to Bing a part of a field for one year, reserving to 
himself one-half of the produce of Bing's field ; before the crop 
was gathered, Hall assigned to plaintiff his interest in Bing's 
crop : held, that this interest was not the subject of levy and 
sale, the legal tide being in Bing till severance. Before sever- 
ance, however, the plaintiff took an assignment, which prevailed 
against the sheriff's claim under a fi. fa. lodged before the as- 
signment. This decision is applicable to the case under consid- 
eration, in another point of view, which I shall notice presently. 
" In the case of Collins v. Montgomery, 2 N. & Mc. 392, it 
was decided that a sheriff could not sell personal property until 
it has been reduced into possession ; and a sale made by the 
sheriff, when the property was not present at the sale, was held 
void ; sustaining the position that to perfect such a sale, there 
must be an actual delivery. 

" Apply these principles to the case under consideration. John 
R, Singleton had nc present interest in the property at the time 
the execution was lodged. He had no immediate dominion over 


the negroes ; and if he had taken them off and sold them, he 
would have been a trespasser. And can the sheriff occupy a 
better position'? Singleton had a mere right to the negroes, de- 
pending on the death of Mrs. Singleton for its enjoyment and 
possession. At any time before plaintiff 's(a) assignment, the 
tenant for life had the legal estate and exclusive possession. It 
follows, then, if her right for the term was exclusive, it would 
have been a trespass for any one to have invaded it by laying 
hands on the negroes. The sheriff during the time had no right 
to levy ; and of course the execution had no lien. 

" But it is said that the lien attached as soon as Mrs. Single- 
ton surrendered her life estate, and upon the severance, by which 
it was ascertained what was John R. Singleton's interest in the 
residuum. There is no doubt but that, at this time, the lien 
under thej^, fa. could have attached, if Singleton had not been 
legally divested of his lien before that time. 

" But the plaintiffs in this case contend that before this sever- 
ance, or the surrender of the life estate, John R. Singleton had 
divested himself of all interest in the negroes in controvers}'-, by 
his assignment to them ; and if so, there was nothing on which 
the execution could attach. And it seems to me that this is un- 
deniable. For although he had not a perfect legal title at the 
time, he had an assignable right, which he transferred to the 
plaintiffs, and which gave them a perfect title as soon as the life 
estate determined, and when Singleton had a present interest 
in, and right of possession to, the negroes. This view is fully 
sustained by the opinion of Mr. Justice Earle, in the case of 
Devon v. Kemp. It has been decided in this State that an in- 
terest in remainder in lands is the subject of lev}^ and sale. 
That decision proceeds on the ground that a sheriff can only 
transfer lands by deed ; but that he cannot by levy either take 
possession himself or put a purchaser in possession of lands."* 

(a) Should be Singleton's. ^Dudley 1 Part 62. 


§ 415. The reasoning of this case does not in part, at least, 
seem to be satisfactory. The fact that the interest in remain- 
der was joint, cannot of course be supposed to have made any 
diiference, since it is every day's practice to sell an undivided 
present interest under execution. The objection, then, simply 
was that the interest was not a present interest in possession. 
It is said, that John R. Singleton's interest was merely an equit- 
able interest ; but it seems to be well settled that such an inter- 
est is a legal interest, If, however, it were but an equitable 
interest, the assignment could not have transferred any other 
than an interest of that hind, except by w?iy of estoppel. If 
the assignees had but an equitable interest, they could not 
maintain an action at law. If they resorted to estoppel for a 
legal title, then it must have passed through the assignor, and 
there the lien of the executicai would have attached to it. It 
must be confessed, however^ that there is much force in the re- 
mark that the sheriff cannot in such case occupy a better posi- 
tion than the defendant himself, and that as it would have been 
a trespass in the defendant in execution to have taken posses- 
sion of the property, so also must it be a trespass if a sheriff 
take possession of it. Yet the sheriff cannot sell without 
the property be present, without, as before said, there be 
consent ; and the conclusion of the court may therefore seem to 
be correct. 

§ 416. There can be no doubt, however, that future vested 
interests may be subjected to the payment of debts by proceed- 
ing in equity, and the same end ought to be attainable at law, 
if it can be done without subverting principle. 

If A and B are joint owners of a chattel, a sheriff, by virtue 
of an execution against B, may levy upon his interest, and take 
the whole chattel into his possession, and by virtue of the levy, 
he may sell the interest of B. That case, however, is not ex- 
actly analogous to the one under consideration, for the possession 


of A is the possession of B, but the possession of a quasi par- 
ticular tenant is not the possession of the quasi remainder in the 
same sense. * Sed quaere. 

§ 417. We may postpone the consideration of the doctrine of 
equity in regard to the ahenation of future vested interests, 
until we come to consider the alienation of future contingent in- 
terests. And so also may we postpone until that time the con- 
sideration of the alienation of such interests -wheo vested in 
married women. 

§ 418. The doctrine of election is applicable to future vested 
interests in chattels personal ; for there is no difference so far as 
the principle is concerned between such interests, and present 
vested interests. 

§ 419. The doctrine was applied in the case of Upshaw v. Up- 
shaw et als. to a quasi remainder. The facts were these : John 
Hunt, being entitled to the reversion of a number of slaves after 
the death of his mother, Ann Upshaw, who was still living, made 
his will on the 28th of December, 1760, which consisted of the 
following bequest only : " I give and bequeath unto my sister 
Mary Ann Dillard, and Elizabeth Upshaw, all my negroes after 
my mother's decease to be equally divided, except one young 
negro Cemp to James Upshaw, to them and their heirs lawfully 
begotten forever." Elizabeth was, at the time, the wife of 
Wilham Upshaw, who on the 17th of January, 1761, made his 
will, whereby he '' lent to his said wife, Elizabeth Upshaw, the 
whole of his estate, both real and personal, during her widow- 
hood, and after her decease, to the heirs of James Upshaw, to 
be equally divided amongst them," &c., and on the 1st of June, 
1761, he annexed a codicil in these words : " N. B. The negroes 

^See question dificussed by counsel in Leslie's Ex'rs v. Briggs, 5 
Leigh 8. 


in the possession of Mrs. Ann Upsbaw, that ioc7s gave my wife 
by her brother, John Hunt, my part I desire may be equally 
divided amongst my uncle Forest Upshaw's three children at 
their mother's decease, Leroy, Milley, and John, to them and 
their heirs forever." 

William Upshaw never reduced the negroes in possession, but 
died soon after the date of his will, leaving Ann Upshaw, who 
survived him about twenty- five years, and retained possession of 
the negroes until her death. Elizabeth Upshaw accepted the 
provision made for her by the will of her husband, and after 
being in possession of his whole estate for more than twenty 
years, she gave up part of it to those entitled in remainder in 
consideration of their enlarging her interest in the residue ; and 
on the death of Ann Upshaw she took possession of a moiety of 
the slaves which had been bequeathed to her by her brother, 
John Hunt. Thereupon the children of Forest Upshaw, named 
in her husband's codicil, filed a bill against her, claiming the said 
moiety of the negroes, upon the ground, that by taking the 
property given by her husband's will, and receiving the profits 
of it for more than twenty- five years, as well as by the contract 
made with her husband's donees in remainder, she had made her 
election to submit to his will ; and so it was held, upon appeal. 

Judge Tucker, after discussing the doctrine of election and 
holding the case before the court to be a case to which the doc- 
trine applied, said : In the case of Whistler v. Webster,' it is 
held, " that a clear knowledge of the funds being requisite to an 
election, no person shall be bound to elect without such previous 
knowledge." Many other cases ^ may be cited to the same 
effect ; and the rule appears to me to be so reasonable, just and 

*2 Ves. 371: 2 Foiib. 326 n. /. 

^Wake V. Wake, 1 Ves. 385 ; Newman v. Newman, 1 Bro. C, Rep. 
187; Boynton v. Boyiiton, ib. 445; Gibbons v. Caunt, 4 Ves. 849; 
Hindes V. Rose, 3 P. W. 125; Pnrcy v. Debouverie, ib. 316; Yate v. 
Moseley, 5 Ves. 480. 


consonant with every principle of equity, that I think it ought 
to be adopted. In the present case, the compromise between 
the appellee (the widow) and the remaindermen may be consid- 
ered as some evidence of such knowledge ; and the nature of that 
compromise is such that it would seem that, in making it, she 
had determined her election. Otherwise, I should have inchned 
to think she could not have been considered as concluded of her 
election, until the death of Ann Upshaw put it in her power to 
ascertain the amount and value both of the property and estate 
bequeathed to her, and of that bequeathed from her by her hus- 
band's will. But taking all the particular circumstances of the 
case together, I am of opinion that the decree be affirmed, as to 
this particular point. 

Upon this point. Judge Roane said : It is not necessary in 
this case to enquire into the extent of the rule that a party elect- 
ing must have a clear knowledge of the situation and amount of 
the fund elected. In this case the compromise, made with the 
devisees-over, of the estate devised to the appellant under her 
husband's will, not only disabled her from electing the other 
interest ; (she having thereby conveyed the absolute interest in 
part thereof to such devisees, and herself acquired the absolute 
interest in the residue ;) but was made after so great a lapse of 
time, that she must have had a clear and undoubted knowledge 
of the value and actual situation of both the interests.' 

§ 420. In regard to the alienation of future contingent inter- 
ests — Every future contingent interest in chattels personal may 
be disposed of by will, if it be such an interest as would other- 
wisis pass to the party's personal representatives.^ 

§ 421. It is said that in England : " Executory interests may 

^2Heii. &MuQ. 381. 

2 2 Fearne's Rem. § 752 ; Roe d. Perry v. Jones et ah., 1 H. Black's 
Rep. 30. 


be bound by estoppel, even though merely created by an inden- 
ture ; but they cannot be transferred by deed. Nor, indeed, 
can an executory interest, whilst it continues such, be directly, 
though it may be indirectly, transferred by a fine or recovery." 
This relates to executory interests in real property, and the dis- 
tinction seems to be that an indenture never operates otherwise 
than as an estoppel, whilst a fine, or a recovery wherein the 
person entitled to the contingent interest comes in as voucher, 
has a double operation, first as an estoppel, and as an estoppel 
it runs with the land until the contingency happens, when it 
feeds upon the estate, and then by a legal metamorphasis, be- 
comes the thing itself upon which it fed. ' 

§ 422. It is a well established rule that an estoppel binds 
parties and privies only, and not strangers ; and that it binds 
only parties and privies inter se, for it must be reciprocal. The 
legitimate efiect of an estoppel by deed seems, therefore, to be 
to pass the title quoad parties and privies and as to them 
only inter se. If, therefore, A by deed transfer a contingent in- 
terest to B, and the contingent interest after come into the pos- 
session of A, B can recover it, in an action at law, because the 
deed is evidence of his title, and A is estopped from denying it. 
But if the property come into the possession of C, then A can 
recover it at law, from him, because he is a stranger to the es- 
toppel, beyond the operation of which the legal title is in A. 
It follows also from this, that B could not recover at law from 
the stranger, because he must show that the legal title is in him, 
and that he cannot do, since as to the stranger it is in A. 

§ 423. These principles apply to deeds poll as well as to 
deeds indented ; for though a grantor in a deed poll is not bound 
by any thing mentioned in the deed, yet if he claim title under 

•Fearne's Rem. (365-6;) 2 lb. § 754; Doe v. Oliver, 9 Barn. 
Cress. 181. 


it, he cannot deny the grantor's title, and so neither sliall the 
grantor deny the title of the grantee. 

§ 424. A release of a future contingent interest operates 
sometimes by way of extinguishment, and sometimes also by way 
enlargement. Thus, whenever the person to whom the release 
is made would have the absolute property, but for the contin- 
gent interest, the release operates by way of extinguishment ; 
as if there be a limitation of chattels personal to A forever, but 
if he should die without issue living at his death, then to B, and 
B release to A, B's interest is thereby exting-uished, and A'& 
interest is absolute. But whenever the person to whom the 
release is made has but a partial interest in every event, then 
the release operates by way of enlargement ; as if there be a 
limitation of chattels personal to A for hfe, with contingent 
quasi remainder to B, and B release to A, B's interest is thereby 
extinguished, and when the contingency happens, A's interest 
is thereby enlarged. 

§ 425. It seems that a release may also operate by way of 
estoppel ; thus, if a release be made to a person in whose hands 
it cannot operate as a release, it would perhaps be construed to 
be a conveyance, and like a conveyance estop the party who 
made it. 

§ 426« A release to one of two joint tenants seems to enure to 
both in case it operates by way of extinguishment 4 but when 
it operates by way of enlargement, it seems to enure to the 
beneSt of him alone to whom it is made.^ These general doc- 
trines are applicable to both real and personal property. 

§ 427- It is scarcely necessary to say that a parol conveyance 
of future interests in chattels personal cannot operate by way of 
-estoppel, for there is no parol estoppel except there be fraud 

J See Wat. Con. (Prest. Ed.) 186. 


actual or constructive. It may be added, in conclusion, that if 
each party be estopped, the estoppels cancel each other, and the 
matter is at large. 

§ 428. The doctrine of election, which we have perhaps suffi- 
ciently considered when treating of the alienation of partial 
interests in prcBsenti, is applicable in like manner to the inter- 
ests now under consideration. ' 

§ 429. In equity, assignments of future contingent interests 
are valid^ and they are treated as executory agreements, which 
will be enforced or not, according to the doctrines of the court. 
They will be enforced against volunteers, even when made in 
consideration of love and aifection, but not against creditors,* 
or subsequent purchasers without notice, or even with notice. 

§ 430. The doctrine of the Court of Equity in regard to 
sales of reversionary interests of real estate, is also the doctrine 
of that court in regard to sales of future interests in chattels 
personal, whether vested or contingent. It is said, that a Court 
of Equity will set aside such contracts, whenever they are made 
under the pressure of some necessity, and the price is inade- 
quate } and that the court will presume, from the fact that such 
a sale has been made, not only that the price was inadequate, 
but also that the sale was made under the pressure of some ne- 
cessity, unless such sale was mxade at public auction, conducted 
In the ordinary manner and with the usual precautions. 

§ 431. But even those facts do not render the sale necessarily 
valid ; they change the onus merely, and devolve upon the other 
party the burden of showing inadequacy of price, and the pres- 
sure of some necessity. It follows from the terms of the ex- 
ception that if a sale by auction be resorted to merely as an 
expedient to cover a private bargain, it will operate nothing. 
So if it were announced in the particulars, that the sale would 

'2 Story's Eq. | 1095. 22 See Feame's Rem. (549.) et seq. 



be without reserve, it seems that the parchaser would be thrown 
back upon the general rule. 

§ 432. " The court, in awarding relief in a suit to set aside a 
contract executed, will have due regard to the conduct of the 
parties ; and therefore, if the vendor applj in reasonable time, 
will not only set aside the contract but direct accounts between 
the parties, and if the purchase money and interest shall appear 
to have been overpaid, will decree the surplus to be refunded : 
but when the vendor is under no disability, conuzant of all the 
facts, and acquiesces for a long period, the court will not direct 
accounts. Under such circumstances to call on parties to refund 
by a retrospective decree to account, might ruin them, for a mis- 
take encouraged by the laches of the vendor, — a course of rigor 
inconsistent with the temperate disposition, which the justice of 
a Court of Equity administers." The general rule, however, is 
that equity regards the transaction as a mortgage, which it will 
set aside upon payment of principal, interests and costs. 

§ 433. It seems that where the bill is filed by a purchaser 
for a specific performance, and the bill is dismissed, the- plaintiff 
must pay the costs ; and when the bill is against him, and he 
has been guilty of fraud, he ought not to have his costs, though 
the cases seem to conflict in regard to it. ^ 

^ 434. In determining the question whether the price paid 
was adequate, the court looks to the value of the interest at the 
time of the sale, and not to the value of it according to subse- 
quent events. 

§ 435. The value is determined by evidence like the value of 
present interests, and the question of adequacy is without a 

'Peacock v. Evans, and vice versa^lQ Ves. 512; Gowland v. DeFiara, 
17 Ves. 20) Moroney v. O'Dea, 1 B. & B. 109 ; Lord Portmore v. Taylor, 
4 Sim. 182. 


definite rule, and has to be resolved in each case by the con- 
science of the court. 

§ 436. Time furnishes no ground to induce a Court of Equity 
to enforce such an agreement at the instance of the purchaser ; 
though it is sufficient ground to induce the court to refuse to set 
it aside, unless the circumstances of the party excuse it ; as that 
he was not cognizant of his rights, as in Murray v. Palmer. ^ 

§ 437. The rule of the court, in regard to laches in other cases j 
seems also to be the rule in cases of this kind, in determining 
whether a vendor or one claiming under him has slept too long 
upon his rights. 

§ 438. Such agreements, however, are held in equity to b@ 
capable of confirmation ; but acts to have the effect of confirm- 
ation must be done by one who is cognizant of his rights, must 
be purely voluntary, and done with intent to ratify that which 
he was entitled to disaffirm. They must be done when the 
pressure of necessity is gone, for as said in Gowland v. De 
Faria,^ " it is only when he is relieved from that distress, that 
he can be expected to resist the performance of the contract." 

In King v. Hamlet, Lord Brougham said : " If the heir flies 
off from the transaction, and becomes opposed to him with 
whom he has been dealing, and repudiates the w^hole bargain, he 
must not, in any respect, act upon it so as to alter the situation 
of the other party, or his property ; at least, that if he does so, 
the proof lies on him of showing that he did so under the, con- 
tinuing pressure of the same distress, which gave rise to the 
eriginal dealing."' 

§ 439. There is an exception to the general rule in regard to 
these sales, and that is, where the person having the interest in 
possersion joins with the person having the vested interest 

'2 Sch. &L Lef. 474. n? Ye?. 25. ^2 My. & K. 456. 


expectant in selling, for then it is said not to be the sale of a 
future interest, but of an interest in possession, and must there- 
fore be governed accordingly. If the party himself have a pre- 
sent vested interest with an expectancy, the question would seem 
to be whether the expectancy was the substantial part of the 

§ 440. There is said to be another exception. It is laid down 
by Lord Brougham, in King v. Hamlet, that the extraordinary 
protection given in the general case must be withdrawn, if it 
shall appear that the transaction was known to the father or 
other person standing in loco parentis — the person, for example, 
from whom the spes successionis was entertained, or after whom 
the reversionary interest was to become vested in possession — 
even though such parent or other person took no active part in 
the negotiation, provided it was not approved by him, and so 
carried through in spite of him. ' 

§ 441. There is still another exception found in the cases, and 
that is when the interest is dependant on contingencies which, in 
the opinion of the court, do not admit of valuation ; as if the 
interest depend upon a dying without leaving issue. ^ 

§ 442. The policy of the doctrines of equity in regard to the 
sales of such interests has been, it is said, frequently and most 
justly condemned by equity judges, as it is obvious that these 
doctrines have no effect in preventing such bargains, although 
they tend materially to augment the hardness of them, it being 
necessary for the purchaser of reversionary interests to take 
additional precautions, and to make the vendor pay for the con- 
tingency of the bargain being set aside. Notwithstanding this, 
instead of throwing in the whole weight of authority against a 

12 My. &. K. 456. 

2Atk. on Tit. 199, referring to Bent v. Baker, 1 Rus. & My. 224; 
Nichols v. Gould, 2 Ves., sr., 422 See also note {d) Atk. Tit. 201. 


doctrine so pregnant with evil consequences, the courts have 
gone on, multiplying refinements, and branching out new dis- 
tinctions in every direction. " I am aware," said Lord Eldon, 
in Davis v. the Duke of Malborough,' " that during my whole 
time, considerable doubt has been entertained, whether that 
poHcy with regard to expectant heirs ought to have been adopted ; 
and although Lord Thurlow repeatedly laid it down, that this 
court does shield heirs expectant, to the extent of declaring a 
bargain oppressive in their case, which would not be so in other 
cases, and imposes an obligation on the parties dealing with 
them to show that the bargain was fair, yet he seldom applied 
the doctrine without complaining that he was deserting the prin- 
ciple itself, because the parties dealing with the heir expectant 
insured themselves against that practice, and therefore the heir 
made a vrorse bargain ; but he certainly, like his ..predecessors, 
adhered to the doctrine, though not very ancient. It is not the 
duty of a judge in equity to vary rules, or to say that rules are 
not to be as fully settled here as in a court of law." And in 
Shelly V. Nash,- Sir J. Leach says : " The principle and policy 
of the rule may be both equally questioned. Sellers of rever- 
t-ions are not necessarily in the power of those with whom they 
contract, and are not necessarily exposed to imposition and hard 
terms ; and persons who sell their expectations and reversions 
from the pressure of distress are thrown by the rule into the 
hands of those who are likely to take advantage of their situa- 
tion, for no person can securely deal with them."^ 

^443. But notwithstanding all that has been said against the 
rule, it seeems not to be without defence. It has a foundation 
in the heart — in sympathy with him who has been plundered in 
his distress ; and in a sense of justice, which cannot see a Shy- 
lock groveling among unjust gains, and gloating and trembling 

'2 Swans. 163. ^ JVlad. 236. 

3Atk. oil TiilesXlSl;) note {m.) 


over the spoils of misfortune. If it be true, that such persons 
alone will deal with expectants, then let equity in its turn deal 
with them. But is it true, that the rule drives expectants to 
seek relief from such a source 1 It is so asserted, and the rea- 
son given is, that no person can securely deal with theiru Bul- 
ls not every sale of an expectant interest which is made for a 
price not inadequate as binding as a sale of a present interest 'f 
Then why cannot those who are willing to buy even with a rea- 
sonable profit, deal securely in the purchase of expectancies': 
The rule does not require the exact value to be paid, but 
merely a fair price ; as in Headen v. Rosher, ' where the actua- 
ry's valuation was £928 8s. and the price given was only £630. 
which it appeared by evidence was about the utmost that could 
be had for such interests. 

§ 444, The objection to the rule seems rathej to be that it 
affords no relief to him who having bargained in his distress is 
yet too conscientious to ask a release from his bargain, whilst it 
relieves him alone who finds in the pressure of necessity an ex- 
cuse for a violation of his contract.^ 

§ 445. We come now to consider the husband's power of 
alienating the future interests, in chattels persona], to which hii 
wife is entitled. 

§ 446. It seems now to be settled in England that every 
assignment of such interests by a husband, whether voluntarily 
made or made in invitum, is liable to be defeated by the sur- 
vivorship of the wife. 

The point was so decided in regard to a contingent interest in 

iMcCIel. & You. 89 stated; Atk. on Tit. (2l2.) 

^Upon the subject generally, see 1 Story's Eq. § 337, et seq.; Jenkins 
et al. V. Pye et al., 12 Peters 241 ; Atk. on Titles (179.) et seq.; Earl of 
Chesterfield v. Janssen, 1 White's L. C, in Eq. (344.) and note; Batteix 
on Spec. Per. 


HorDsLy v. Lee ; ^ and it was so decided in regard to a vested 
interest in Purdew v. Jackson.^ The principle of tlie one case 
is tlie principle of the other. The first case " excited consider- 
able inquiry in the profession," and when the question was 
again presented in the second, it recieved a most elaborate dis- 
cussion from both the bench and the bar. The question was 
again presented in Honner v. Morton,^ and the Lord Chancellor 
decided in accordance with the two previous cases, and said that 
the decision vfas in accordance with principle. 

§, 447. The principle is thus stated by Sir Thomas Plumer 
in Purdew v. Jackson : " Reduction into possession is a necessary 
and indispensable preliminary to the husband's having any right 
of property in himself, or to his being able to convey any right 
of property to another. If he dies without having been able or 
willing to perform this condition, the right of the wife continues 
unaltered, exactly as if she had never married. If the husband 
himself could not perform the condition on which his property in 
this personal chattel was to depend, how could any act of his 
alter the nature of the thing 1 How could his assignment have 
any such effect ? The nature and operation of such an instru- 
ment is to pass to another the right which the assignor has. 
The assignee may in some cases have a better and more extended 
right than the assignor has : but could the thing assigned be 
totally changed in its nature 1 could he confer an absolute right 
to the property wholly freed from the wife's contingent right 1 
Could the assignment of a future right of action give a present 
right of action ? Could it give a present right of possession ? 
Could it authorize the assignee to reduce immediately into pos- 
session what did not become due till ten years afterwards 1 By 
changing hands, could that which was a contingent and future 
right of action, become an absolute and immediate right of pos- 

^2 Mad. 16. 2] R^^s. 1. ^dB,us.65. 


session 1 How could the assignee take the property or any part 
of it from Isabella Purdew during her life ? In other words, 
how could he accelerate the possession any more than tlie hus- 
band himself could have done ? To call this assignment a con- 
structive reduction into possession — a possession in some sense — 
tantamount to possession, &c., is to suppose two things to be 
the same, which are directly opposite to each other : it is to 
suppose a chose in action to be a thing constructively reduced 
into possession : it cannot be both : no construction can make 
things opposite in their nature to be the same. The phrases 
which are employed to gloss over this contradiction are all 
equally inapplicable to the subject, being borrowed from cases 
where there is an immediate right of possession, and where (as 
after a judgment, but before execution,) the property may be 
considered changed and the condition substantially fulfilled." 

§ 448. One cannot but be surprised after reading this opinion 
to find it said in Shuman v. Reigart : " The foundation of his 
argument is, that marriage gives the husband a distinct but in- 
choate title of his own ; and that, when he assigns her chose 
before reduction of it to possession, he assigns, not her title to 
it as the instrument of her power, but his own inchoate title, 
and no more ; the fallacy of which is proved by the fact that he 
must join her in an action to recover it. If he had a separate 
title to the thing, he could recover separately on it j but as he 
cannot recover without joining her, as he would in an action 
for a wrong purely personal, he r?covers on her right, not his own. 
Sir Thomas seemed to think in Purdew v. Jackson, that reduction 
to possession enlarges the husband's ovrnership, and bars the wife's 
survivorship, by some sort of technical legerdemain, as a common 
recovery bars an entail, and for reasons not less inexplicable. ' 

§ 449. Now, it seems clear that the opinion in Purdew v. 
^7 Watts & Sere. 168. 


Jackson did not rest upon the foundation attributed to it. It 
rested upon the grounds, that the wife's title to her chattels 
personal remained unaltered after the death of the husband in 
the lifetime of the wife, unless he or his assignee reduced them 
into actual or constructive possession ; that a transfer of them 
bj the husband gave his assignee the power which he himself 
had, and no more, of reducing them into possession during the 
coverture ; and that there could not be a constructive possession 
without an immediate right to actual possession. 

§ 450. If the wife has a vested quasi remainder, and the prior 
interest becomes vested in her, the husband or his assignee may 
reduce the whole into possession, and thereby defeat the wife's 
right of survivorship. ^ But it seems that a Court of Equity 
will not lend its aid to consummate a transaction by which it is 
attempted to vest such prior interest in the wife, and thus 
attempt to defeat her right of survivorship ; nor indeed permit 
a future interest belonging to the wife to be defeated by the 
operation of merger.^ 

§ 451. But a distinction has been taken between those future 
interests of a married woman, which might have been reduced into 
possession during the coverture, and those which could not have 
been reduced into possession during that time, and it is said that 
when the husband has, for a valuable consideration, assigned a fu- 
ture interest belonging to his wife, and it has been possible for the 
husband or the assignee to reduce it into possession during the 
coverture, a Court of Equity will imply a reduction into posses- 
sion in favor of the assimee.^ But this distinction is denied. 

'Bat see Moye et ah. v. , 2 Haywood 186. 

*See Bell on Prop. Hus. & Wife (91,) citing Whittle v. Heniiing, 
before Cottenham, Lord Chancellor. 
^Homierv. Morton, 3 Rus. 68. 


and the better opinion seems to be that it is not well taken, and 
two later cases are against it.' 

§ 452. It is a general rule, that a married Yroman cannot do 
any act during coverture, which will be binding upon her after 
the coverture is ended, and therefore her consent to the alienation 
of her future interest, given in court, or her joining with her 
husband in the conveyance, will not affect her right of survi- 

^ 453. Another point connected with this matter is whether 
the husband can release his wife's future interest in chattels 
personal so as to defeat her right of survivorship? It is laid 
down as safe doctrine, that a release by the husband of such 
interest will not defeat the wife's right of survivorship, in case 
the interest does not fall in, or the contingency happen during 
:the coverture. - 

§ 454. The American Courts have differed in regard to the 
husband's power to defeat the wife's right of survivorship to her 
future interests in chattels personal, by ihe alienation of such 
interests for a valuable consideration. 

§ 455. In Woeiper's Appeal, Gibson, C. J., said : " There has 
been a general error, here and abroad, in receiving the evidence 
of a thing as the thing itself, which has complicated this part of 
the law with arbitrary distinctions. The true foundation of the 
husband's title is his power over his wife's cboses, coupled with 
an exercise of his will, of which reduction to possession is a par- 
ticular indication, but not a conclusive one. He may apply his 
wife's choses to his own use, by parting with tht-m for value; or 
he may leave her title to tliem intact, even where they are in. 
Ills possession, if the presumption of ownership, from the-ordi- 

•' Ellison V. Elwin, 13 Sim. 309 ; Ashley v. Ashley, 1 Jac. & W. 479. 
■^Beli on Prop., Has. & Wife {^96.) 


narj badge of it, be rebutted bj circumstances. It is bis as- 
sumption of the title, and not tbe form of the act, by wbicb it is 
iiidicated, which is the criterion." ' In accordance with this the- 
ory, it is held in Pennsylvania that any act of ownership by the 
husband with intent to convert the wife's choses to his own use, 
is sufficient, without reduction into possession, to defeat the 
wife's right of survivorship. ^ 

§ 456. But is that theory true? If it be, then the convey- 
ance, by the husband, of the wife's future interests in chattels 
personal, and of her present choses in action, without valuable 
consideration, must defeat the wife's right of survivorship, as 
effectually as when made for a valuable consideration. If it be, 
whence the necessity, in any case, of joining the wife in an ac- 
tion for the recovery of her chose in action ? If it be, why can- 
not the husband dispose of the wife's choses in action by will so 
as to defeat her right of survivorship? The maxim of the com- 
mon law is : Vir et uxor sunt quasi unica -persona^ quia caro 
una et sanguis unus. The legal existence cf the wife is not 
merged civiliter in that of the husband, but it is united to his, 
and ceases upon marriage to be separate. The husband, how- 
ever, by the marriage, does not lose his separate legal existence. 
Hence it is, that when a man marries a woman who is indebted, 
the creditor must sue the husband and the wife; and hence it is, 
that if he does not obtain a iudormeot asiainst them durinoj the 
life-time of the husband, the debt survives against the wife alone, 
and not against the executor or administrator of the husband. 

§ 457. The legal existence of the wife, then, is not destroyed, 
but is united, and in subordination, to that of the husband. He 
alone, therefore, can take legal steps. He alone can institute a 
suit for a recovery of the wife's choses in action, which were hers 

'2 Barn 73. 

2lb.. liter's case, 4Rawle, 468: Shuman v. Reigart 7 Watts&Ser. 168. 


dum sohy but he must join his wife in the action, because the 
legal title is in the wife. The cases which have established that 
be maj sue alone for choses in action accruing to the wife during 
the coverture, seem to have departed from principle. But with- 
out going upon contested ground, we may assume, wdiat all ad- 
mit, that the wife's choses in action survive to her, if the hus- 
band exercise no power over them; and that is sufficient to show 
that the legal title does not pass to the husband by the marriage. 
Then what does pass ? It seems that marriage is a conveyance 
of the wife's chattels personal to the husband. Assent on the 
part of the person to whom a transfer is made, is necessary to 
pass the title to him. Hence it is, that if the husband take the 
chattels personal belonging to the wife into his possession as hus- 
band, his title becomes perfect. But the legal title to a chose 
in action cannot be transferred, and hence it is, that his assent 
to the transfer of such a chose cannot pass to him the legal title. 
Possession under a parol gift is necessary to perfect the legal 
title, and hence the necessity that the husband should obtain 
possession of the wife's choses in action. But the husband may 
transfer such choses in action as are assignable at law^ and there- 
by defeat the wife's right of survivorship ; and this is in accord- 
ance with^ and in confirmation of, what has just been said. 

§ 458, The theory then, is, that marriage is an assignment to 
the husband of the wife's chattels personal, that his assent as 
husband is necessary to perfect his title to her choses in posses- 
sion, and his reduction into possession of her choses in action as 
husband, is necessary to perfect his title to them. 

§ 459. It may be said that if this theory be true, then the 
transfer by the marriage of the wife's chattels personal must be 
a transfer either for a valuable consideration, or without a valu- 
able consideration. If it were for a valuable consideration, then 
as chosss in action are assignable in equity, that court ought to 
assist the representatives of the husband to recover them after 


his death, though they had not been reduced into possession by 
him. But here it may be said that though marriage is a valu- 
able consideration, when made as a consideration of a contract, 
yet in the absence of a contract, the chattels of the wife pass by 
gift, and not by sale, ' for the wife before the marriage, and af- 
ter the contract, may dispose of her chattels in any way she 
pleases, provided the disposition does not amount to a fraud up- 
on her intended husband. If, then, the transfer by marriage is 
a transfer without valuable consideration, why is it not held that 
the chattels which belonged to the wife are subject to the debts 
which she owed dum sola. It was held at one time in equity, 
that the husband was liable to the extent of her fortune even af- 
ter her death, but the rule w^as changed, because as the hus- 
band was liable during the coverture for all her debts contracted 
dum sola, though she had no chattels personal, it was thought fair 
that he should not be liable to judgment beyond the coverture, 
even when she had an ample fortune. It was certainly no fraud, 
the only ground which a creditor could have taken, because the 
fortune of the wife was not only liable in the hands of the hus- 
band, but his fortune became also liable, and therefore the gift 
by marriage could not be impeached, either at law or in equity. 

§ 460. But it may be said, that though the husband cannot 
alien a future contingent interest of the wife so as to defeat her 
right of survivorship, yet he may so alien her vested quasi re- 
mainder, since the possession of the person having the prior in- 
terest is the wife's possession. It is true that the wife in such 
case has the legal vested interest, and so also has she, if A. B. 
is indebted to her in the sum of one thousand dollars, payable 
twelve months after her marriage. She has a present right to 
the future possession and enjoj^ment of the property. The pos- 

^Shice writing the sentence, I have found it so laid down by Rnffin; 
C. J.J in Logan v. Simmons, 1 Dev. & Bat. 15. 


session of the person having the prior interest, is not adverse; 
but in what other sense can it be said that the possession of 
such person is the possession of the quasi remainder-man ? It 
certainly cannot be said that a quasi remainder-man has either 
an actual or constructive present possession. It would seem 
therefore to be theoretically true^ that the husband's alienation 
of such an interest by virtue of his marital right, would not de- 
feat the wife's right of survivorship. 

§ 461. Butj as we said before, the American authorities dif- 
fer upon the effect of the husband's alienation. Chancellor Kent 
says, the doctrine that the husband may assign the wife's chose 
in action for a valuable consideration, and thereby bar her of her 
right of survivorship, but subject, nevertheless, to the wife's 
equity, has been frequently declared, and is understood to be 
the role best sustained by authority.^ 

§ 462. In Knight v. Leak, the Court said : "We also under- 
stand the law to be, that the husband, Jt^re mariti, has such a 
dominion over the vested legal interest of his wife, in a chattel, 
real or personal, of which a particular esifate is outstanding, that 
he can sell such interest, so as to transfer it completely to 
the purchaser, and that the law can transfer it for his debts. 
We understand the effect of an assignment by the husband, of 
his wife's equitable interest in a chattel, in which she has not 
the right of immediate enjoyment, to be different; for such as- 
signment will not prejudice her right, should he die before her, 
and before the period allotted for such enjoyment to take effect."* 
This, however, is but a dictum, and it seems contrary to the 
broad principle of former adjudications in that state; as appears 
from the case of Johnston & Wife v. Pasteur,^ where the pre- 
vious cases are reviewed and the result declared to be, that the 

'2 Kent's Com. (137.) ^2 Dev. & Bat. 135. 

^Conference's Rep. 46-1. 


husband must reduce the property into possession. The same 
general proposition is asserted in Casey v. FonvilleJ But in. 
none of those cases does the effect of the husband's assignment 
seem to have been decided. In subsequent cases, the general 
proposition that the expectant interests survive to the wife, unless 
the husband assign, release or reduce them into possession, is 
established. In McBryde v. Choate et als.,^ it was held that a 
husband could not defeat the wife's right of survivorship in a 
quasi vested remainder, by making a disposition of it by will- 
In Burnet v. Roberts, Ruffin, C. J., said : "I believe that at law 
the rule is, that the husband may assign every chattel interest 
of the wife, whether immediate or expectant, which from its na- 
ture would be legally transferrable, were the interest the hus- 
band's in his own right, with the exception of property so lim- 
ited to the wife, as that it cannot possibly fall into possession 
during the coverture. It is so laid down in the best authori- 
ties.— 3 Thomas' Coke, 333, n. (m.); 1 Rop. on Prop. 236."=^ 
In Allen v. Allen, '^ it is said that if the husband assign even to 
his wife, after marriage, a distributive share accruing to the 
wife, without valuable, consideration, when he is insolvent, it is a 
fraud upon his creditors, and they may subject it in equity, 
though without such assignment they could not have reached it. 
but it would have remained subject to the wife's right of survi- 
vorship. In Barnes v. Pearson et al.^ Pearson, J., in deliver- 
ing the opinion of the Court, said : ^^The husband is not entitled 
absolutely to a legacy given to his wife. It becomes his if he 
reduces it into possession, or he may dispose of it, if it be such 
an interest as lie can presently reduce into possession. But if 
ho dies without doing so, the wife is entitled to it."^ And, he 

^N. C. Law Repos. 287. 22 Iredell's Eq. 610. 

34 Dev. (Law) 83. 

*6 Iredell's Eq., 293 — see Jacobs and Sloraan, adm'rs, v. Perryclear, 
Riley's Ch. Ca. 47, contra. *6 Iredell's Eq. 483. 


adds, that a Court of Equity will not compel the husband to ap- 
ply the legacy to the payment of his debts. 

§ 463. But let us turn to another State. In Caplinger v. 
Sullivan, Felts bequeathed certain slaves to his wife for life, and 
at her death to his daughter Ann, wife of Sullivan. Sullivan 
having purchased the life estate, sold and delivered the slaves to 
Caplinger, and died, leaving the tenant for life, and Ann, his 
wife, surviving, and it was held that on the death of the tenant 
for life, the slaves belonged to Ann. The court assert the gen- 
eral principle laid down by Judge Story, that "no assignment 
by the husband of reversionary choses in action, or other rever- 
sionary equitable interests of the wife, even with her consent and 
joining in the assignment, will exclude her right of survivor- 
ship," for the reason that the assignment "is not, and cannot 
from the nature of the thing, amount to a reduction into posses- 
sion of such reversionary interests."' And in regard to the 
effect of the husband's having become the owner of the life estate 
upon which his wife's quasi remainder was expectant, Reese, 
J., in delivering the opinion of the court, said : The wife had no 
interest in the husband's purchase ; he stood in the place of ten- 
ant for life. The tenancy for life still continued, and the re- 
versionary interest, unaffected by such purchase, could not com- 
mence in possession till the life estate terminated. The hus- 
band possessed the slaves, but he possessed them as purchaser, 
not as hushandj and his title and possession were of, and com- 
mensurate with the life estate, and that only. Here was no 
merger of estates. * * * If the husband, having assigned, 
had continued to live till the life-time estate had terminated, 
then indeed, as a Court of Chancery views such assignment as 
an agreement to assign when in his power, and considers that 
also as done which ought to have been done, the assignee, for a 

» Story's Com. Eq., 2 1413. 


valuable consideration, would in equity have been entitled to tlie 
property.^ But this last proposition is but a dictum, and^ 
though in accordance with what was said by Lord Lyndhurst in 
Honner v. Morton, it cannot be received as the better doctrine. 
In Goodwin v. Moore, Smith bequeathed a life estate in slaves 
to his wife Catherine, and the remainder to his daughter Nancy« 
Heaton married Nancy, and the quasi tenant for life surrendered 
her interest to him. Heaton died, and Nancy married Moorely, 
and thereafter Catherine died, and then Moorely. The con- 
test was between the administrator of Heaton and the ad- 
ministrator of Moorely, and it was held that the surrender of 
the life estate by Catherine could have no other effect than a 
sale under similar circumstances, and that the slaves having sur- 
vived to Nancy, became the property of the second husband af- 
ter the death of the quasi tenant for life.^ 

§ 464. [n Thomas, &c. v. Kennedy, the Court say that it has 
long been a vexed question, whether the husband can defeat the 
wife's right of survivorship by an assignment of her chose in ac- 
tion. Able authorities, say they, are arrayed on both sides of 
this question, and it is regarded at this day as not fully settled. 
After citing authorities, they add : ''And our conclusion upon 
the whole matter is, that the current of modern decisions is 
against the power of the husband. But this Court, in the case 
of Meriwether v. Booker & Wife, (5 Littell, 258,) determined, 
without much apparent consideration or research of authorities, 
that the husbaud might bar her right by a sale of her interest 
in remainder in slaves. And a dictum to the same effect is to 
be found in the case of Upshaw v. U pshaw et al., 2 Hen. & Mun. 
B89. We do not deem it necessary, in this case, to overrule or 
affirm the principle settled in the former case, and intimated in 
the latter."^ 

^2 Hump. 648. M Hump. 221. '4 B. Monroe^ 23g. 


§ 465. In BrowniDg v. Headley,' Allen, J., recognised the doc- 
trine laid do\Nn in Purdew v. Jackson, and Honner v. Morton. 

§ 466. In Matheny v. Guess et als., the cases of Piirdew v. 
Jackson, and Honner v. Morton are recognised ; and the distinc- 
tion taken by the Lord Chancellor in the latter case, between 
the assignment by the husband for a valuable consideration, of 
such interests of the wife as might be reduced into possession by 
the husband, or the assignee during the coverture, and such as 
are not so reducible, is there asserted to be a sound one. - 

§ 467. In Upshaw v. Upshaw et als.^ it is said that a hus- 
band, dying in the life-time of his wife, cannot bequeath her re- 
version, or remainder in slaves, though he may sell it in his life- 
time for a valuable consideration. ^ 

§ 468. In Pitts v. Curtis, a testator gave to his son a slave 
until the slave attained twenty-one years of age, remainder to 
his daughter, a married woman. The Court said : "It is of no 
moment that the actual occupancy or right to the present pos- 
session for an ascertained period was in another, that is notb- 
ing more than exists in every bailment, and no principle is bet- 
ter ascertained than that the possession of the bailee is the pos- 
session of the bailor. The rule of law is, that the general pro- 
perty of a chattel draws to it the possession. The special pro- 
perty being in the plaintiff in error, his possession of the slave 
"was consistent witii, and was in law the possession of the tenant 
:u remainder, who had the general property in the slave. 

"Such b'nng die law, the right of the husband '\vas perfect upon 
the assent of the executor to the legacy, which is shown in this 
case. He might have sold and transferred it before the parti- 
cular estate was at an end ; upon his death before his wife, it 

•2 Robisou, 340. ^2 Hilrs Ch. Rep. G(5. 

32 Hen, & Man. 381. 


would have gone to bis representatives, and by necessary conse- 
quence, having survived his wife, the title vests in him." ' 

§ 469. A distinction is taken in some of the books between 
such expectant interests as belonged to the wife at the time of 
her marriage, and such as accrued to her during the coverture, 
and it is said that if such an interest accrue to the wife during 
coverture, it vests in the husband absolutely, ^ but the distinc- 
tion seems to be illy taken. It is contrary to principle and to 
the better authority, and ought not therefore to be tolerated^ 
unless it has become a rule of property. 

§ 470. In conclusion, it may be added, that the theory which 
is herein asserted to be the better one may seem to be in con- 
flict with adjudged cases in regard to chattels personal of the 
wife, which are outstanding by bailment for hire at the time of 
the marriage, and which are not reduced into possession by the 
husband during the coverture. Thus, in Whitaker v. Whita- 
ker, ^ a slave belonging to a feme sole was, before her marriagej 
hired for a year, and the husband having died before the expi- 
ration of the year, it was held that the slave did not survive to 
the wife, but belonged to the personal representatives of the hus- 
band. The reason of this ruling is, that the possession of the 
bailee is the possession of the bailor, and therefore the chattel is 
a chose in possession. But the wife has neither the actual pos- 
session, nor the right to the immediate actual possession. How 
then can it be said that the husband's title is perfect by the 
marriage, since delivery of possession is necessary to perfect a 
title by parol gift, and since actual possession neither was, nor 
could be obtained by the husband during the year 7 It is said 
that the constructive possession of the wife passed to the hus- 
band. If this be true, then the ruling may be held to be in ac- 

'4 Ala. 350. 23 How. (Miss.) 394. and cases cited. 

*1 Dev. 310. * 


cordance with the theory. But is there not some falsity in that 
idea of a constructive possession, when another person has the 
possession, and the exclusive right to the possession ? In what 
sense does such a possession differ from the possession of a quasi 
remainder-man 1 

§ 471. In Putnam v. Wiley, the court recognise the princi- 
ple that the owner of a chattel cannot maintain trespass for 
taking it, unless he had actual or constructive possession of it at 
the time, and assert that he has not such constructive posses 
sion unless he had the right to the immediate actual possession. ' 
So in Lotan v. Cross, Lord Ellenborough held that a gratuitous 
permission to a third person to use a chattel does not, in con- 
templation of law, take it out of the possession of the OAvner, and 
he may maintain trespass for any injury done to it while it is so 
used ; but if there had been a letting for a certain time to such 
third person, the possession would be in the latter, and he alone 
could bring the action.^ These cases seem sufficient to estab- 
lish the position that constructive possession in its legitimate ac- 
ceptation cannot exist, unless there be a right to immediate 
actual possession. 

§ 472. The theory seems, indeed, to be inconsistent with the 
position, that a husband dying before he has reduced into pos- 
session or done some act tantamount to it, can transmit to his 
representatives a chattel loaned by his wife whilst a feme sole; 
since marriage is said to be a revocation of such bailment,^ and 
the thing would then seem to be merely a chose in action. 

§ 473. But whatever may be the true principle, it is said in 
Bacon: "But where the goods of a feme sole are in the possession 
of aaother by trover or bailment, and she marries, the property 

'8 Johns. (435.) "2 Camp. 464. 

3Story on Bail. (190,) § 277. 


^vhicli continued in tlie wife is vested in the husband, and he 
alone mnj bring detinue for them."^ 

§ 474. The theory seems also to conflict with the cases which 
hold that the assignment for valuable consideration, by the hus- 
band of his wife's choses in action, presently reducible into pos- 
session, defeats the wife's right of survivorship, whether the as- 
signee reduce them into possession during coverture, or not. But 
this was not the earlier and it seems the better doctrine ; for, in 
Burnett v. Kinaston,^ the Lord Keeper said : " If a husband as- 
sign a bond belonging to his wife for a valuable consideration, 
this assignment will not bind the wife, if she survives."^ 

§ 475. It seems necessary that something should be said in 
regard to the effect of marriage upon the future interests of the 
wife, in chattels personal, in case the husband should survive the 
wife, and they should still remain future interests at the death 
of the wife. 

§ 476. By the common law, an administrator was not bound 
to distribute the surplus of the intestate's goods after payment 
of his debts. By statute the common law was changed, and ad- 
ministrators were compelled to distribute ; but husbands, ad- 
ministering on the estates of their deceased wives, were excepted, 
and therefore they were entitled as at common law. It was 
held that the husband was entitled to administration, and con- 
sequently the equitable title to the surplus of the wife's goods 
after payment of her debts dum sola vested in him. But we 
need not go into this matter, since it is well asserted that the 
husband's title to his wife's choses not reduced to possession at 
her death is derived alone from his right to administration, and 
not from the marriage. And this is confirmatory of the theory 

'Bac. Abr. 22, (nore,) (Bouviers edit.) 

=^Prec. Chan. 121; Freem. 241. 3gtatedClancey'sHus.& W. 150. 


that we have asserted to be the better one, m regard to the ef- 
fect of marriage upon the property of the wife. 

§ 477. The next subject for consideration is the transmission 
of future interests in chattels personal. The general rule is, 
that every future interest which survives its owner is transmissi- 
ble to his representatives, like interests in prcesenti.^ 

§ 478. The transmission in each case is from the dead to the 
living; according to the feudal maxim, le mort saisit vifJ In 
cases, therefore, of commorientes — of persons perishing by the 
same calamity, as by the foundering of a ship at sea, the sensi- 
ble rule seems to be that the property shall be transmitted to 
the representatives of him who was last the owner before the 
calamity; unless it is proven that the other person who would 
next have been entitled was the survivor- By showing owner- 
ship and death, the case of the representatives is made out, and 
the burden of proving the survivorship rests necessarily upon 
those who claim by virtue of it. The civil law, in the absence 
of testimony, presumed that the stronger survived, but it seems 
to be a better rule, in such case, to hold that the representatives 
of him who had shall take, rather t£an the representatives of 
him who might have had. 

§ 479, But take a case illustrative of the general rule. In 
Pinbury v. Elkin : One makes his wife executrix, and gives her 
all his goods and chattels ; provided that if she shall die without 
issue by the said testator^ then after her decease 80Z. shall re-, 
main to the testator's brother, J. S. The testator died, then J, 
S. died, and then the wife died without issue, and one question 
was, whether the legacy to J. S. did not become void by reason 
of his death before the happening of the contingency'? The court. 

^M'Meekin, adm'r, v. Brummet, 2 Hill Ch. Rep. 642. 
^Hub. onSuc. (194) 


said the}^ were of opinion this possibility would go to the execu- 
tors of the legatee. That it was true in Swinburne, 461-2, &c., 
some cases were put which seemed to import the contrary ; but 
those cases were so darkly put, and with so many inconsistencies 
as to be all overbalanced by the opinion of Lord Nottingham, in 
2 Vent, 347, where a man devised 100^. to A, at the age of 
twenty-one years, and if A died under age, then to B. B died 
in the life- time of A, and afterwards A died under age, yet de- 
creed that the executors of B should have this 100/. ^ 

^P. W. (564.) 



§ 480. The first question that presents itself here is in regard 
to the right of a person, to whom a partial interest is given, to 
have the possession of the property in which his interest exists. 
The general rule is that he is entitled to possession, as well as 
to the enjoyment, of the property during the time for which it is 
limited to him. If any one, therefore, takes the property unlaw- 
fully out of his possession, or unlawfully detains it from him, he 
can maintain any action for its recovery which a general owner 
could maintain. If he brings trover, his damages ought to be 
computed according to his interest, ' for otherwise it would be 
necessary to hold that the interest of a quasi remainderman in 
the property was destroyed, and that he must look to his interest 
in the damages. 

§ 481. But the general rule is not without exception. In 
every case in which the property is wholly or in part of a per- 
ishable nature, and there is not an intention that the first taker 
shall have the property in specie^ a Court of Equity will direct 
it to be sold, and the proceeds invested for the benefit of the 
parties respectively entitled. The party entitled to the partial 
interest will be entitled to the interest of the money until his 
limitation expires, and the party entitled to the subsequent ab- 
solute interest will be entitled, when his limitation takes effect, 
to the fund itself. 

§ 482. When articles of a perishable ni.\ture are given spe- 
cifically to one person for a limited perl ;\1t and afterwards to 

* Strong v. Strong. 6 Ala. 345. 


another person, the court holds that the first taker is entitled to 
the possession of the property. But where there is a general or 
residuady gift of such chattels, the presumption in England is 
that the intention was that the property should be sold, and the 
proceeds invested, so that each object of the donor's bounty 
may be the recipients of it. The leading case seems to be that 
of Howe V. the Earl of Dartmouth. In that case the Lord 
Chancellor said : " It is given as all his personal estate, and the 
mode, in which he says it is to be enjoyed, is to one for life, and 
to the others afterwards. Then the court says, it is to be con- 
strued as to the perishable part, so that one shall take for life and 
the others afterwards ; and unless the testator directs the mode 
so that it is to continue as it was, the court understands, that it 
shall be put in such a state, that the others may enjoy it after 
the decease of the first ; and the thing is quite equal ; for it 
might consist of a vast number of particulars : for instance, a 
personal annuity, not to commence in enjoyment till the expira- 
tion of twentv years from the death of the testator, payable 
upon a contingency, perhaps. If in this case, it is equitable 
that long or short annuities should be sold to give every one an 
equal chance, the court acts equally in the other case ; for those 
future interests are for the sake of the tenant for life to be 
converted into a present interest i being sold immediately in order 
to yield an immediate interest to the tenant for life. As in the 
one case, that in which the tenant for life has too great an inter- 
est is melted for the benefit of the rest, in the other, that of 
which, if it remained in specie, he might never recieve anything 
is brought in ; and he has immediately the interest of its present 
worth. ^ 

§ 483. In the late case of Morgan v. Morgan, the Mastci* of 
the Rolls said : " Now the rule of law as applicable to these 

^7 Ves. 147. 


cases is not, I think, open to doubt, although the application of 
the rule to particular cases may be, and frequently is, a matter 
of very considerable difficulty." After asserting the rule laid 
down in the preceding case, he adds : '' This rule has been since 
affirmed as often as it has been referred to, and is unquestionably 
the law. But the testator may take the case of any particular 
bequest out of this rule ; and the effect of the latter cases has 
been to allow small indications of intention to prevent the ap- 
plication of the rule. The question here, as in similar cases, is 
one of construction, whether the testator has, in his vnlL ex- 
pressed his intention, that this rule shall not apply to this par- 
ticular case. 

" It is urged by the petitioners, that the burden of proof does 
not lie upon them more than on the respondents, and that being 
a question of construction, it is for the court to look into the 
will and discover the testator's real meaning. In one sense, 
this is certainly true ; but still, in my opinion, the rule of law 
is, that, unless there can be gathered from the will some expres- 
sion of intention that tlie property is to be enjoyed in specie^ the 
rule in Howe v. The Earl of Dartmouth is to prevail. It is 
theref.re incumbent on the persons contesting the application of 
that rule, and on the court which forbids that apphcation, to 
point out the words in the will which exclude it, and if this can- 
not be done, the rule must apply." ^ 

§ 484. Let us look now to some of the cases which involve 
the question whether there is sufficient indication of intention to 
take the bequest out of the rule, for " the reported decisions on 
the subject are useful, as they form a guide to enable the court 
to ascertain what directions contained in a will are properly con- 
sidered to be an expression by the testator uf his nitention that 
this rule is not to apply." In the case last cited, the testator 

^7 Eng. Law&Eq. Rep. 221 


bequeathed all his money, securities for money, money in the 
funds, household furniture, cattle, and all other his personal 
estate and effects, unto two trustees, upon trust to pay his debts 
and legacies, and subject to the payment of a legacy, to stand 
possessed upon the trusts after mentioned. He then devised his 
freehold estates to trustees, upon trust, to permit his wife to re- 
side at his house, and to use the household furniture, plate, linen, 
and china therein for her life, and to pay the rents and profits of 
his real estate, and the interest, dividends and proceeds to 
arise from his said money, and securities for money, money in 
the funds, and personal estate thereinbefore bequeathed to her 
for life, and, after her decease, to sell his real estate, and divide 
and pay the purchase moneys ; and to pay, assign or transfer 
his said money and securities for money, money in the funds, 
and personal estate unto his children. Heimpowered his trus- 
tees from time to time, to alter, vary, and transpose any of the 
stocks, funds, or securities upon which any part of his personal 
estate might be invested. The testator died possessed of long 
annuities and leaseholds, and the contest was in regard to them. 
The Master of the Rolls, addressing himself to the point under 
consideration, said : " In no case that I have been able to find, 
has the mere absence of any direction to convert his property 
been construed to mean that it should be enjoyed in specie by the 
legatees in succession ; and the contrary must have been decided, 
though not exactly so stated in Johnson v. Johnson, 2 Coll. 441. 
" There are several cases in which the court held, that the 
rule was excluded, where the testator has fixed the period of 
conversion ; as for instance, where he has given the property to 
one for life, and after the death of that person has directed the 
property to be sold and divided. The case of Goodenough v. 
Tremamodo, 2 Beav. 512, was decided on the word " rents,'^ 
and Alcock v. Sloper, 2 M. & K. 699, turned on the direction 
to convert, being after the -death of the tenant for life; but this 
rests on an obvious rule of construction, that the direction as to 


the time when the property is to be converted, excludes the in- 
ference that it is to be converted at an earlier period. 

" The case of Hunt v. Scott, 1 De Gex & Sim. 219, is the 
nearest to the present, of all the cases to which I have been re- 
ferred, or which I have been myself able to discover ; but in 
that case, besides an absence of any direction to convert, as ap- 
plicable to the property to be enjoyed in specie, there is a direc- 
tion to convert contained in the will applicable to other property, 
which, in my opinion, distinguishes it from this case, and from 
the case of Johnson v. Johnson decided by the same judge. 

*' I think, therefore, that the absence of this direction cannot 
be treated as an expression of intention on the part of the tes- 
tator, that his property was not ever to be converted ; it would, 
I think, be unreasonable if it were so held. By law, the prop- 
erty must be converted ; a testator may not unreasonably be 
supposed to be cognizant of that law, and to have given no 
direction on the subject, because he may have supposed that it 
would be mere surplusage so to do. This also is consistent 
with the opinion expressed by Vice Chancellor Wigram, in Cafe 
V. Bent, 5 Hare, pp. 34 and 35, which is very material to this 
part of the case. 

'' But still this is a circumstance not wholly to be rejected, 
and the rest of the will must be examined, in order to discover 
the intention of the testator. The rest of the will here con- 
firms my opinion, that the testator had not supposed the whole 
of his property was to remain unconverted. The residuary 
clause runs thus : he gives " all his money," &.C., "household 
furniture," &c., &c., " to trustees, upon trust, in the first place, 
to pay thereout all his just debts, funeral and testamentary ex- 
penses, and legacies." Some portion of his estate must have 
been sold to pay the debts and legacies. Which portion did he 
intend to apply for that purpose '? If a part was to be sold, why 
not the whole 1 


" In the subsequent enumeration of the residuary estate, he 
omits the words '' household furniture and cattle." It is to be 
inferred, therefore, that as to those at least, he supposed they 
woukl have no specific existence as a part of his estate when it 
was to be divided. This is, it is true, but a trilling matter, and 
but httle weight is to be attached to it ; it removes, however, 
the force of the observation, that the various parts of his resid- 
uary estate are repeated in the same exact words ; this is not 
so, as two of the enumerated items most likely to perish are not 

" Again : The power to vary securities, at the close of the 
will, is only intelligible on the supposition that the property had 
been converted. This clause is also important in another point 
of view. If the testator intended his widow to enjoy the long 
annuities in specie, could he have permitted his trustees to defeat 
that intention, as undoubtedly they might do, if, under this 
clause in the will, they turned the long annuities into three per 
cent, consols, or invested the produce on mortgage. 

" The directions respecting the great Staughtcn estate are 
also important. I accede to the argument, that if the testator 
had intended the whole property to be enjo^^ed in specie, he would 
not have considered it necessary to direct that the household 
furniture, plate, linen, and china at Great Staughton should be 
enjoyed in specie by the wife during her life. 

*' It was urged, that this observation would have a two-fold 
operation, because, as he has directed the estate at Great 
Staughton to be sold, it is to be inferred, that if he wished the 
rest of the property to be sold, he would have given similar di- 
rections. But the circumstance that the Great Staughton was a 
property of which the testator had the fee, and could not be sold, 
unless the will contained some direction fcr this purpose, removes 
the force of this observation, 

" The circumstance that the residue is given to two of the 
executors as trustees, and not to the three executors, does not 


weigh with me, as to the construction to be given to the rest of 
the will. 

" The general scope and effect of the whole will and the pas- 
sages to which i have referred would, without considering any 
particular expressions, lead me to the conclusion, that the testa- 
tor did not intend the property to be enjoyed iVz specie ; still, 
this may be varied by the force of particular expressions used 
by the testator, and accordingly, the counsel for the petitioners 
ref3r to several expressions contained in the will, as being con- 
sistent only with their construction of the will ; and they sup- 
port their view by many authorities. 

'^ There is certainly a great variety of cases, where the court 
has laid hold of various small expressions, as indicating the 
testator's intention, that the property was to be enjoyed in 
specie ; but all, or nearly all, of them are, I think, referable to 
a particular mode of management of the property or payment 
out of it, which management or payment could not take place 
unless the property remained unconverted. 

** For instance, in Pickering v. Pickering, 2 Beav. 31, and 4 
M. & C. 289, and Goodenough v. Tremamodo, 2 Beav. 512, 
the rents are directed to be paid to the legatee ; and there was 
no property producing rents except leaseholds. In this will, the 
word "rents" is used; but it is confined to the freeholders* 
In Cafe v. Bent, 5 Hare, pp. 34 and 35, the testator directed a 
per centage on the receipt of the rents of the leaseholds to be 
paid to his son John. In Burton v. Mount, 2 De Gex & Sm. 
383, a mixed property, consisting of freeholds and leaseholds, 
was given to trustees, in trust, out of the rents, to pay annui- 
ties, with a powder of sale given to them, which showed, that 
until sale, the leaseholds should be enjoyed in specie. 

" I do not go through all the cases, which are very numerous ; 
but each, when examined, will be found to possess the character 
I have already referred to. 

^* In this will, I look in vain for any such expression. The 


word on which the petitioners mainly relj, is the word " as- 
sign," which, thej say, is properly applicable only to lease- 
holds ; but this word might apply to mortgage securities, upon 
which, under the general power at the end of the will, the tes- 
tator probably considered that he had authorized his trustees to 
advance money ; and the words reddendo singula singulis^ in 
their order, so far from supporting, would exclude the supposi- 
tion, that the word '^ assign " was intended to apply to lease- 
holds remaining unconverted. The passage in the will runs 
thus: "pay" "my money," ''assign" "my securities for 
money," and " transfer " my " money in the funds and per- 
sonal estate." 

" There are other cases, such as Bethune v. Kennedy, 1 M. 
& C. 114, Collins V. Collins, 2 M. & K. 703, where the testator 
has expressly pointed to the property by name, as unconverted, 
or has described his property as remaining in the manner in 
which it was situated when he died. These cases have no refer- 
ence to the present, as this will contains no such expressions. 

" Upon the whole, therefore, I am of opinion that the testator 
has not given his property to be enjoyed in specie ^ 

§ 485. The object of the rule ought also to be considered in 
determining a case, for even where there is no indication of an 
intention that the property should be enjoyed in specie^ still the 
case may not fall within the reason of the rule which requires a 
conversion to be made. As was said in Pickering v. Pickering : 
''Great injustice would be done, if where there is nothing in 
the will but a tenancy for life and a remainder, it is always to 
be held that the property is to be at once converted."* Thus, 
if part of the legacy be judgments against insolvents the court 
ought not to order them to be converted, for though a trifling 
sum might be obtained for them, yet as neither party would be 

H My. & Cr. 303. 


injured by reason of the non-action of the court, they might 
both be much injured by its action, 

§ 485. The general rule prevails in this country. Thus in 
Cairns et als, v. Chaubert and Wife, a testator gave the rents 
&nd profits of his real estate and the income of his personal 
property to his wife for life, and after her death to Mrs. Cairns ; 
and after the making of his will acquired the right to the profits 
of a toll-bridge for a term of years. The Chancellor said : 
^' As the bridge was not in existence, nor in the contemplation of 
the testator, at the time of making his will, two years before 
the passage of the act authorizing him to build it, upon no prin- 
ciple of construction can this be considered as a specific bequest 
of successive life estates to his wife and Mrs, Cairns in this 
particular property. The case, therefore, falls within the general 
principle, that where an estate for life, or any other interest short 
of absolute ownership, is given in the general residue of the tes- 
tator's personal estate, terms for years, and other perishable 
funds or property, which may be consumed in the using, are to 
be converted and invested in such a way as to produce a perma- 
nent capital ; the income or interest of which permanent capital 
alone is to go to the owner of the life estate, or other particular 
estate in the testator's residuary personal property.' 

jj J 

§ 486. In Harrison et aL v. Foster et al.^ the general rule was 
laid down, but it was held to be controlled in that case by the 
intention of the testator. For the residue was given to the 
widow for life, or during widowhood, to use in any necessary or 
lawful way, to sell for a valuation, or to dispose of all or any 
part for her convenience or necessary use, and the terms of the 
gift were, therefore, totally irreconcilable with the idea that the 
residue was to be converted.^ 

»9 Paige Ch. Rep. 160. 25 Ala. 955. 



§ 487- In Dunbar's Ex'rs v. Woodcock-s Ex'r, a Virginia 
farmer gave the residue of his estatCj real and personal, to his 
'wife for life, and after her death, he gave the same, as well the 
land as all the other property remaining at her death, to D and 
wife» The residue consisted of land^ including the farm on 
which the testator lived, slaves and live stock thereon,, furniture, 
farming utensils, and crops of grain. It was held that the 
widow was entitled to enjoy the property in specie, except so much 
of the crops of grain as was not necessary for use on the farm 
and in her family during the year ensuing her husband's death. * 

§ 488. In Evans et al. v. Iglehart et at., Loper gave all his 
real estate to his wife, and declared : " After her death, I will 
the tract of land H, together with all the personal property 
which may belong thereto at her death, to E and her heirs for- 
ever. Item, — I give to my wife, for life, all my personal prop- 
erty not hereinbefore disposed of, together with all the money of 
which I may die possessed ; after her death, I give the one half 
part of all my said personal property to the children of J. C. and 
B, to be equally divided among them ; and the same shall be 
immediately, or in a convenient time after the death of my said 
wife ; the other half shall go to and be vested in w^homsoever 
my wife shall by last will direct." The widow appointed two 
to take under her power over the moeity of the perc^oual prop- 
erty after her death. Some of the residuary legatees in remain- 
der of Loper filed a bill against the executors of Loper and his 
wife, and E, the appointee of his wife, for an account and dis* 
tribution of Loper's personal estate among the parties entitled. 
The court said : '^ Whether the widow of James P. Loper ought 
to enjoy his personal estate specifically, or to recieve nothing 
more than the interest on its value, is purely a question as to 
the intention of the testator, in conformity to which his will must 

Mo Leigh 628. 


be executed ; there being no unbending principle of law to con- 
trol such intention, whether it be in the one way or the other. 
The testamentary law of Maryland, then, looking to the distri- 
bution of the deceased's personal estate in kind, amongst legu- 
tees and distributees, and the practice of executors and admin- 
istrators having been always conformable thereto, ought we 
not to presume that the testator had a knowledge of this 
law, and the usage under it, and that he made his will in refer- 
ence thereto, contemplating and intending its execution accord- 
ingly ? The same reasons, which prompted the introduction of 
this chancery rule in England, do not urge its adoption here. 
We have no three 'per cent, stock in this country, as in England, 
in which it is the policy of the government that all investments 
by the authority of the chancery court should be made ; nor 
have we any stock, judicially regarded, of such pre-eminent 
security as to be the exclusive object of such investments. (a) 
The nature of our personal property, too, differs materially from 
that which is the subject of the testamentary disposition in 
England. A considerable portion of our personalty consists of 
slaves, born in our families, humanely treated, faithfully serving 
us, and warmly attached to their masters and their connexions. 
To part with such property, even when under the influence of 
pressincr necessity, is a severe trial to the feelings of the master. 
But voluntarily, and uninfluenced hj any such necessity, to 
subject them by will to sale under the hammer, perhaps in for- 
eign bondage, whilst his farms to vfhich they belonged were 
distributed amongst his connexions and relatives, is conduct, the 
idea of which rarely if ever entered into the imagioation of a 

(a) This is a misconcepriou of the gromid of the principle. The 
reason why a Chancery Court ni England directs investments to be 
made in a particular kiud of property, is totally foreign to the reason 
why it directs the conversion of perishable property when it is limited 
generally to persons in succession. 


Maryland land-holder. We cannot, therefore, for one moment^ 
suppose that where the testator gave all his real and personal 
estate to his wife during her life, that contrary to his express 
words thus used, his intention was not to give her any part of 
his personal property, but that his executors should sell and 
invest the same, and pay to her its annual income for life. If 
such had been the meaning of the testator, he would have used 
appropriate terms to convey it to his executors. 

"Is it natural to suppose, that it entered into the contemplation 
of James P. Loper, that after his death, his widow should forth- 
with abandon his mansion at Loper Hall, that his favorite system 
of husbandry should be discontinued, his farms placed in the 
hands of impoverishing unsparing tenants, all his slaves, not 
even excepting his own body servant, or the waiting maid of his 
wife, sold, (and probably in foreign servitude,) and that not an 
article of his personalty (his carriage and horses excepted) 
should be specifically enjoyed by those objects of his bounty and 
affection, on whom he had so explicitly bestowed it. But the limi- 
tation over to Elizabeth Evans, of all the personal property that 
might belong to Loper Hall farm at the death of the widow, is 
conclusive evidence that the testator did not intend that the 
general residue should be sold and invested ; as in that event, no 
part of his personal property could by possibility belong to 
Loper Hall at the death of his wife. 

" If the surplus or residue thus bequeathed consists of money 
or property, whose use is the conversion into money, and which 
it could not for that reason be intended should be specifically 
enjoyed nor consumed in the use, but be by the executor con- 
verted into money for the benefit of the estate ; as for example, 
a quantity of merchandize, a crop of tobacco or the like, an in- 
vestment thereof must be made by the executor in some safe and 
productive fund, or it must be put out on adequate securities, 
and most properly under the authority and direction of the Or- 
phans' Court or a Court of Equity, so as to secure the dividends, 


interest or income to the legatee for life, and the principal after 
kis death to the legatee in remainder."^ 

§ 4S9. We arc led, then, to this remark, that instruments are 
to be read by the light of surrounding circumstances. In the 
absence, therefore, of evidence furnished by the instrument itself 
it must be presumed, that a man intended that his property 
should be taken and enjoyed in accordance with the customs and 
feelings of the community in which he held and enjoyed it 

^ 490. The next point for consideration is the time at which 
the donee, &c., of a partial interest in proesenti is entitled to 
enter into the enjoyment of it. If he is entitled to the enjoy- 
ment of the chattel in specie, and the gift be by deed, there is 
generally no difficulty in determining the point, for the deed 
itself furnishes the answer. 

§ 491. If the gift is by will, then the general rule seems to be 
that the legatee is entitled to the possession of the chattel at the 
time when the executor ought to make distribution of the estate. 
In England the Courts Ecclesiastical, and following them, the 
Courts of Equity allow to the executor one year for the settle- 
ment of the estate. In this country a statutory rule prevails 
in the several States. In this State, the time fixed is eighteen 
months ; but in WiUiamson & Wife v. Mason, Ex'r, &c.,2 the 
court say: " There is one case, however, in which distribution 
may be required before the lapse of eighteen months, as we under- 
stand the statute — that is, the case of a report from the admin- 
istrator that the estate is solvent." It seems that even where a 
petition is filed for distribution within the time that a demurrer 
will be sustained, even though it be alleged that there are no 
debts. ^ The same statute applies to executors. 

^6 Gill & John. 195. 213 Ala. 87. ^ib. 


§ 492. But the executor may assent to the legacy at any 
time, and then the legal title of the legatee is perfected, and he 
may recover the possession. 

§ 493. In Finch et at. v. Rogers, McKinney, J., in delivering 
the opinion of the court, said : " It is certainly true, as a gen- 
eral rule, that the assent of the executor is necessary to perfect 
the title of the legatee to a bequest of chattels, whether personal 
or real, and whether specifically or generally bequeathed ; and 
without such assent, possession of the chattel cannot be taken 
by the legatee. This is for the protection of the executor, upon 
whom the law devolves the personal estate for the payment of 
the debts of the deceased, and who is responsible to creditors to 
the extent of the whole personal estate. But the title or*the 
legatee is derived from the will, and is not created by the assent 
of the executor ; consequently, such assent has only the effect 
of perfecting the title derived from the will ; or in other words, 
such assent is only necessar^^ to entitle the legatee to demand or 
sue for the recovery of the cbattel, if it be in the possession of 
another who v/rongfully v^^ithholds it. From these principles it 
would seem, to follow, that in a case like the present, Avhere the 
legatee was placed in possession of the chattel specifically be- 
queathed by the testator in his lifetime, and there are other 
assets sufficient for the payment of debts, the assent of the ex- 
ecutor is not absolutely necessary in order to a complete legal 
title in the legatee. In such case, the legatee being actually in 
possession, and that, too, by the act of the testator in his life- 
time, the reason of the rule, which requires the executor's 
assent, does not apply. ' The executor, in the case stated, 
would not be chargeable with such chattel ; it would not be as. 
sets in his hands ; nor could he maintain any action against the 
legatee for its recovery, except in the event of a deficiency of 

'See Lowry v. Mountjoy, 6 Call. 55, 


assets to discharge the debts of the estate, after having fully 
administered the residue of the personal estate. 

"But, again, it is well established, that a person appointed an 
•executor, may assent to a legacy before he proves the will ; and 
having once assented, he cannot retract such assent afterwards, 
unless, perhaps, the presentation of debts unknown at the time 
such assent was given, should occasion a deficiency of assets." ' 

§ 494. The doctrine, however, that the assent of the executor 
is not necessary to vest the legal title to a chattel in a legatee 
when it was delivered to the legatee by the testator in his life- 
time, and specifically bequeathed, and there is a sufficiency of 
assets without it, cannot be relied on ; for the true doctrine 
seems to be that in every case in which a claim to a chattel is 
under a willj there must be an assent of the executor or admin- 
istrator cum testamento aiinexo.^ 

§ 495. But note here, if a chattel be delivered by a testator 
to a person, it may be a donatio mortis causa^ though specifically 
bequeathed in the will ; and so no assent of the executor would 
be necessary, because in that case the legal title would not pass 
;to him. 

§ 496. And here it may be added that if a legacy be given to 
an executor, or to one of two or more executors, such executor 
may assent to his own legacy even before administration. But 
he must, either expressly or by implication, elect to take as 
legatee., otherwise he will be held to have taken as executor. ^ 

§ 497. It seems to be true in all cases, vv'here the gift is by 
will, that the legatee for a limited period ought to sign an inveiv 
tory of the propei'ty, acknowledging that the chattels are in his 
possession for the limited time, and that afterwards they are to" 

U Hump. 563. "VVentworth's Ex. 409. 

nb. 66 j 2 Shep. Touch. 335; 31 L. L. 


be delivered and remain to the use of the subsequent legatee,, 
or the personal representatives of the testator^ as the case re- 
quires* The inventory so made ought to be delivered to the 
legatee in remainder or to the executor for his use. If there m 
BO limitation over^ or if the executor is entitled to the property 
after the expiration of the first limitation, or if the limitation 
over is to a person not in esse or not ascerti^ined, or it seems if it 
be otherwise contingent^ then the inventory ought to be delivered 
to the executor. It is the duty of the executor to require such 
an inventory, and he is n&t bound to deliver the chattels without 
such an inventory be delivered, and hence is this a qualification 
upon the legatee^s right to the legacy at the time when he is en- 
titled to the possession of it. * 

§ 498. When the legatee is not entitled to the enjoyment of 
the legacy in specie^ or when it is a money legacy, then the leg- 
atee is entitled to the enjoyment at the time prescribed by the^ 
statute of limitations in this country, and in England, at the ex- 
piration of one year from the death of the testator. What he 
is entitled to in such case, in the intermediate time, will come 
up for examination in another place. 

499. We must now look to the manner of the partial limitee^s 
interest. And here the general rule is, that if he is entitled to 
the enjoyment of the chattels in specie^ that he is entitled to^ 
enjoy them for the time limited in the same manner in which 
general owners ordinarily enjoy them. But suppose the gift be 
by will, and the executor has received profit, or ought to have 
received profit from the legacy prior to the time when he was 
bound to deliver possession to the legatee, then vfho i& entitled 
to such profit as he has received, or as he is personally chargea- 
ble with by reason of his duty and his omission 1 It seems that 

^See Kinnard v. Kinnard, 2 Watts 109; Luke v. Bennet, i Atk. 471 ; 
Bell V. Kiriaston, 2 Atk. 82: Foley v. Burnell, 1 Bro. Ch. Rep. 279. 


tbe partial legatee is entitled to such profit, if it be not needed 
as assets in tbe due course of administration. This conclusion 
appears to result from the position that an executor is a trustee, 
first, for tbe creditors of the estate, and then for tbe legatees — 
that his detention of the chattels is for a specific purpose, apart 
from which the legatee is entitled from the death of the testator. 

§ 500. This matter was before the court in Turnage v. Turn- 
age. In that case a reference was made to the master in tbe 
court below, who reported that assets to an amount exceeding 
^6000 in good promissory notes, bearing interest, due the testa- 
tor, came to the hands of the executrix, upon which sum he has 
charged interest up to the 8th of October, 1849 ; in all $T04l 
40. He has credited the executrix with two notes specifically 
bequeathed, and $1200 in other good notes given to her, and 
with various pecuniary legacies paid by her, and has allowed in- 
terest from the dates of the several payments up to 8tb of Oc- 
tober, 1849 ; and he has also allowed vouchers for payment of 
debts and funeral expenses, amounting to $129 32, upon which 
he has given interest from the date of the several payments to 
the 8th of October, 1849. 

The plaintiff, alias Turnage, filed two exceptions, which raise 
the question whether the executrix was entitled to the allowance 
of interest on the legacy to her of $1200 in good notes, and on 
the pecuniary legacies, until after the expiration of two years 
from the probate of the will. As she is charged with interest 
on one side of the account, it is right that she should be credited 
with interest on the other side, provided the legacies were not 
paid before they were due. That raises this question ; as the 
executrix had funds in hand and there were no debts against the 
estate, was she at liberty to pay the legacies forthwith and settle 
the estate ? Or was it her duty to keep the fund at interest for 
two years merely for the benefit of the residuar3^ legatee ? The 
statute allows executors and administrators two years to settle 


estates, upon the supposition that many estates are complicated 
and cannot well be settled in less time. This, however, is in- 
tended as an indulgence to them, and was by no means intended 
to confer on the residuary legatee the right to have the fund put 
out at interest for his benefit. In this case, as no time is fixed 
on for the payment of the legacies, they were payable forthwith ; 
and as the condition of the estate did not require delay, the 
executrix was not only at liberty, but it was her duty, to pay 
them as soon as she had funds in hand. In fact, the legatees 
might have sued within the two years, and under the circum- 
stances the court would have decreed the legacies to have been 

§ 501. The fact that the legatee might or might not have sued 
within that time, does not seem in anywise to afiect the principle, 
since that is but a postponement of the remedy for the adminis- 
tration of the estate. 

§ 502. If an executor retains possession after he ought to de- 
liver the chattels to the legatee, and they are injured or depre- 
ciated in value, the executor is answerable de bonis propriis to 
the legatee for such injury or depreciation,^ The principle is 
the same as in detinue. 

§ 503. If the chattels in which a partial interest is created 
be such as increase their numbers, then the question arises, how 
is the quasi particular tenant entitled to such increase ? The 
general rule is, that the partial legatee is entitled absolutely to 
such increase as is made during the continuation of his particular 
estate, subject, it is said, to the liability of keeping up the ori- 
ginal stock. ^ The qualification, however, is denied, and the 
rule is said to be absolute.'^ The true question, in such cases, 

'7 Iredeirs Eq. 129. 2Qj^,^,^i.[h v. Beech, 4 Ves. (556.) 

^Ryau V. Bull, 3 Strobh. Eq. 86. ^Lewis v. Davis, 3 Mo. 133. 


seems to be, is the increase profit or is it principal ? if profit 
merely, it belongs to the quasi particular tenant ; if principal, 
it passes to the party subsequently entitled. The determination 
of the question depends upon circumstances. If the gift be of 
a fiock of sheep for life, the profit consists of the shearing, and 
such increase as is not necessary for keeping up the original 
stock. So it would be in the hands of a general owner, and so 
it ought to be in the hands of a partial owner. 

The same rule ought to govern in case of a partial gift of a 
stock of hogs, or a herd of cattle ; for the same reason applies 
to them. But if a brood mare be given to A for five years, it 
seems clear that A would be entitled to the colts foaled during: 
the five years. The principle seems to be clear enough, but 
there is difiiculty in applying it, as there is indeed of all princi- 
ples to particular cases. 

§ 504. There is a difference of judicial opinion in regard to 
the increase of slaves.' Some courts hold that the quasi par- 
ticular tenant is entitled absolutely to such increase as accrues 
during his limitation ;^ others hold that he is not so entitled, 
but that upon the expiration of his limitation the increase passes 
to the party subsequently entitled. ^ We assert the latter to be 
the better doctrine, and we say that, in principle, there is a dif- 
ference, in this respect, between slaves and fiock, or herds. The 
ordinary way of deriving profit from a flock of sheep is by 
shearing them, and hj eating and selling a certain number every 
year ; but the ordinary way of deriving profit from slaves is 
hj using their services, and not by shearing them, or b}^ eating 

'Bequest of slaves and all increase, children boni before the deatii 
of the testator, do not pass, because a will speaks from death. Turn- 
age V. Taniage, 7 Iredell's Eq. 128. 

^Soraniervilie v. Johnson, 1 Har. & i\JcHen. 352 : Concklin v. Haven. 
12 Johns. 314. 

2 Wilkes' Adm'r v. Greer d oL, 14 Ala. 427— cases cited. 


and selling a certain number of them annually. A gift, there- 
fore, of slaves for a limited time is a gift of their services and 
of the services of their increase during the time of the limi- 
tation. And so we conclude that the increase of slaves is not 
profit but an accretion to the capital, and ought therefore to 
pass with it. 

§ 505 And here it may be added, that in England when an 
extraordinary dividend is declared among the holders of bank 
stock, it is held that a quasi particular tenant of such stock is 
entitled to such extraordinary dividend only as he is entitled to 
the original stock ; and this because it is not considered as profit, 
but as an accretion to the capital. ^ 

§ 506. The doctrine, as we have asserted it, carries out the 
intention of the dunor, for it is in accordance with the common 
understanding of those unacquainted with the interpretations of 
law, and therefore it is a good one. 

§ 507. The idea advanced by the Provincial Court of Appeals 
of Maryland, " that the issue ought to go to the person to whom 
the use is limited ; otherwise, having no interest worth regard- 
ing, he might not take care of the issue," ^ cannot be tolerated for 
a moment, since it has no other basis than inhumanity. If, 
however, there is anything in the idea, who is to take care of 
the .shaves originally given, who, during the tenancy for life, may 
all have become old and valueless 1 Their care and support 
must fall back as a charge upon the donor's estate;^ but it seems 

^Brandon v. Brandon, 4 Ves. (800:) Paris v. Paris, 10 lb. (185.) 
^iJohsoii V. Scott, as staced Sommerville v. Johnson, 1 Har. & Mc- 
Hen. 353. 

3See Mooney v. Evans, 6 Iredeirs Eq. 363. It was held in that case, 
that the acceptance of the remainderman, who was a minor, could 
not be presumed, because the remainder was a burden. In the ab- 
sence of evidence, such presumption could not be made in the case 
of an adult. 


hard that, that which went out as a bounty should return as a 
burden. There may indeed be no estate upon which they can 
be thrown back, for during the continuance of the quasi tenancy 
it may have been scattered to the winds, and thus the superan- 
nuated slaves would become a burden upon the county. But 
even if there were sufficient remaining, would those into whose 
hands it had passed be more certain to minister to their wants, 
than would the quasi tenant to the wants of the issue ? Is it 
not apparent that the children have a better chance of being 
cared for, even upon the concession of inhumanity, since they have 
their fathers and mothers to care for them ? Besides, children 
become valuable in a few short years; and is a quasi tenant of 
slaves, for a limited period, an exception to the rule that " man 
thinks all men mortal but himself"'? And this is applicable, 
for generally such limitations are for life. 

§ 508. The same rule in this respect that is applicable to 
bailments is applicable to partial interests, and it would cer- 
tainly do violence to the understanding of every owner of slaves 
to hear it asserted, that the child born of a slave during tho 
year for which she was hired did not at the end of the year re- 
turn with its mother to her master. Does this present no ques- 
tion of humanity ? The same case might occur in case of a 
partial interest, and it could not happen otherwise, if there were 
children, than that they should be separated from their parents, 
unless there were interest or humanity to induce a purchase; or 
unless the doctrine contended for be allowed to prevail. 

§ 509. It seems, therefore, upon the whole, that the court in 
Concklin v. Haven, ' had no cause for self-gratulation, except 
that the case, under the total misapplication of a general rule, 
furnished occasion for a judicial jubilee. The court there evi- 

'12 Johns. 314. 


dentlj made haste to reach a conclusioD, and having reached it, 
to grasp it with an exultation which might well have been omitted. 

§ 510. When the chattels are such as are consumable in the 
use, there can be no question, if it be held that the quasi 
particular tenant is entitled absolutely. If entitled to use them 
and his interest be not absolute, still he is entitled to use them 
in the ordinary way, even though such use result in their entire 
consumption. If the donor declare his intention to be that the 
quasi particular tenant may enjoy such articles in speciey but 
that he shall account for their value to the subsequent owner, 
the intention, of course, would prevail. So, if a plantation, 
stock, farming utensils, corn, &c. be given for life, or years, the 
particular tenant is entitled to the use of every thing, but as he 
is bound to good husbandry, he must leave the plantation in a 
husbandman-like manner. Subject to that duty, he is entitled 
to the profits accruing during his limitation, and if he be tenant 
for life and die after the crop is planted and before it is gath- 
ered, his representatives are entitled to the emblements, after 
deducting a year's provision. In Poindexter v. Blackburn et al.^ 
however, it was held that the tenant for life was entitled to the 
increase of stocks of horses, cattle, &c. and to the crops left by 
her as the fruits of her industry, and to the growing crops like- 
wise as emblements. * But the doctrine as stated above seems 
to be the better doctrine, for it cannot be supposed that a testa- 
tor intended that he in remainder should enter into possession of 
a plantation, stripped of all provision. 

§ 511. When the gift is of money, it is the duty of the exe- 
cutor to invest it, and then the quasi particular tenant is entitled 
to the interest during his limitation; or, in this country he may 
have the money itself upon giving satisfactory security, but not 
otherwise. The executor would render himself liable by paying 

'1 Iredell's Eq. 289. 


it over without taking the security, however solvent the quasi 
particular tenant may be. ' The English cases do not recognise 
the right of the quasi particular tenant to have the money itselfy 
even upon giving security, but in this country, at least, the rule 
seems to be a good one. 

§ 512. When the chattels are not to be enjoyed in specie, but 
are to be converted into money, then it is the duty to convert 
them within the time prescribed for distribution to be made, and 
if not converted in England at the end of the first year, a Court 
^of Equity holds them to be converted, upon the principle that 
what ought to be done is done. In this country the statute of 
distributions furnishes the rule, unless the duty of the executor 
according to the usual course of administration requires an ear- 
lier conversion. 

§ 513. The same principles apply to the money when con- 
verted, that apply to the money when it is given in the first in- 
stance, viz : that the quasi particular tenant is entitled to the 
interest of the money when invested, during the time of his lim- 
itation ; or to the money itself, in this country, upon giving sat- 
isfactory security. 

§ 514. If a quasi particular tenant dies before a dividend of 
stock, or before an annuity becomes payable, his representatives 
are not entitled ; but if he dies on the very day of payment, they 
would be entitled to the amount due.^ But his representatives 
would be entitled to the interest which had accrued at the day 
of his death, upon the money invested ; otherwise in this coun- 
try, when the legatee has the money upon security, it would be 
necessary to hold his estate chargeable with interest from the 
end of the year preceding his death, unless he happened to die 

'Kiiinard V. Kiunard, 5 Watts, 110— citing Eiciiilberger v. Barnitz, 
17 Serg. & Rawle, 293, 
sPaton V. Sheppard, 10 Sim. 186. 


on the very last day. Interest, unlike rent, accrues day by 
day, and that is the reason of the thing. 

§ 515. There is difficulty, however, in determining what the 
partial legatee is entitled to daring the time that the property 
remains unconverted and yielding a profit. In Morgan v. Mor- 
gan, the Master of the Rolls said ; "The later authorities on this 
subject concur in this : — that the legatee for life is to take some- 
thing ; but they are not, as it appears to me, reconcileable as to 
the extent of the interest which the legatee for life is to take, 
although the subject has been much agitated. 

"Sir Anthony Hart, in La Terriere v. Bulmer, 2 Sim. 18, de- 
cided that the income of the testator's property during the first 
year, so far as it was derived from investments such as the court 
would sanction, belonged to the legatee for life of the residue ; 
but that so far as it was derived from property not so invested, 
formed a part of the general residuary estate ; and this rule was 
commended by Vice- Chancellor Sir James Wigram, in Taylor 
V. Clark, 1 Hare, 161, although he considered himself bound by 
authority not to follow it. It does not appear to me, however, 
to be scarcely reconcileable with Gibson v. Bott, 7" Ves. 89, and 
not at all with Angerstein v. Martin, Turn. & R. 232. In the 
former of these cases^ Lord Eldon directed that a value should 
be put on the leasehold estate, and that the legatee for life should 
receive four per cent, on that value, from the death of the tes- 
tator, and in the latter of those cases, he made a decree, under 
which the legatee for life took the income of Russian stock, part 
of the estate which was directed to be sold and laid out in the 
purchase of land. The rule so laid down by Sir A. Hart ap- 
pears to me to be open to this objection, that the income of the 
residuary legatee depends upon the mere will of the executors, 
who may, from negligence, caprice, or enmity, fail to convert 
the property of the testator, until one year after his death shall 
have elapsed, and thereby deprive the residuary legatee of all 


income during that year. The decision of Sir A. Hart has net 
been followed, and in Dimes v. Scott, 4 Rus. 195, Lord Ljnd- 
hurst laid down the rule to be, that the legatee for life of the 
residue was entitled, during the first year of the testator's death, 
to the dividends on so much three per cent, stock as would have 
been produced by the conversion of the property at the end of 
that year. 

" There is some inconvenience in this rule, which requires a dif- 
ferent inquiry to be made, in every case, as to the value of the 
property at the end of one year ; nor does it seem, in principle, 
at least, to be quite consistent with Lord Eldon's observation la 
Gibson v. Bott^ that " the whole practice of the court is against 
special directions as to the value at the time of the death." The 
only cases cited appear to have been Angerstein v. Martin, and 
Hewitt V. Morris, Turn. & Russ. 241. This question subse- 
quently came before Lord Langdale, in Douglass v. Congreve, 1 
Keen, 410, who, after reviewing all the previous authorities, in 
an elaborate judgment laid down as the rule, that the legatee 
for life of the residue is to be allowed the income actually pro- 
duced by that residue until conversion, or until the end of one 
year, which of those events should first happen. The result of 
that rule is this: — if the conversion take place before the end of 
the year, till that period of conversion, the legatee for Hfe will 
take the income actually arising, and after conversion, the inte- 
rest of the converted fund : in this case, no inquiry as to the 
value will be necessary. If, on the other hand, the conversion 
takes place after the end of one year, then the legatee for life 
will take the income actually arising during the year that has 
elapsed after the death of the testator; and, after that year, so 
much as the residue, if converted and invested at that time, 
would have produced. In this case, an inquiry becomes neces- 
sary to ascertain what was the value of the property at the ter- 
mination of the first year, and what amount of consols it would 
have produced if then invested. 


" This decision of Lord Langdale's has been commented upon 
and comiiiended by Mr, Jarman, and seems to have been followed 
by Lord Langdale^ in Mehrtens v. Andrews, 3 Beav. 72, and 
in Robinson v. Robinson, 11 Beav. 371. 

" This rule also seems ope.i to considerable objections. Sir 
Jfimes Vvjgram, in Tr^ylor v. Clark, 1 Hare, 161, points out the 
inconvenience which miglit arise from it, where the larger por- 
tion of the T^roperty of the testator consisted of rents of lease- 
hold which "would expire in one year. It seems difficult, also, to 
distinguish income which expires in one year from that which 
expires in less than a year ; and yet if a testator died just be- 
fore the last payment of dividends on the long annuities, or of 
an annuity on the life of any other person, it could scarcely be 
contended that this formed part of the income of the residuary 
estate. It is also open to the objection I before referred to, as 
applicable to the rule in La Terriere v. Bulmer, 2 Sim. 18, that 
the executors, from favor to the residuary legatee, might delay 
till after the year hvA elapsed the conversion of perishable pro- 
perty pr( duciog a larger income. All the authorities were re- 
viev/ed oj Sir James Wigram, in the case of Taylor v. Clark, 1 
Hare, 161, and he considered himself, although reluctantly, 
bound to follow the decision of Lord Lyndhurst in Dimes y. 

" This decision was also followed by Vice-Chanceilor Sir 
James Knight Bruce, in Sutherland v. Cooke, 1 Collyer, 498. 

*^ Li this state of the authorities, I consider m3^self bound to 
follow the decision in Dimes v. Scott; and, upon the whole, it 
appears to me to be that least open to objection ; and I shall 
adopt that rule accordingly, until I may be controlled by some 
higher authority.''^ 

§ 516. But there is another class of cases which require no- 

'7 Eng. L. & Eq. Rep. 224. 


tice liere, and it is that class in which a Court of Equity would 
generaii}'' direct a conversion of the property, but in which a 
part or the whole of the property cannot be converted. Thus, 
Id Pickering v. Pickering, the Lord Chancellor said : ''It is ofteii 
very difiicult to carry out the principle of Howe v. Lord Dart- 
mouth. Here v^'as an annuity for many years not paid ; thr 
tenant for hfe got nothing from it. It was not saleable; for the 
party liable to pay it was supposed to be in&ol/ent. Suppose 
it had been foreseen that it would ultimately be recovered, still 
a sum of money payable thirty years hence cannot be much re- 
lied on. All that time the tenant for life gets nothing. 

" The only way in whrch justice could be done would be to take 
the facts as they ultimately turned out, and see what was the 
value before, because that was all that the remainder-man was: 
entitled to, namely, the value of the property convertible thirty 
years hence."* 

§ 517. A case worthy of notice here, is Morgan v. Morgan. 
In that case a testatrix gave a legacy to A, with the accumula- 
tions of interest from her death, upon a contingency, and gave 
the income of the residue of her estate to H for life, with remain- 
ders over. Some years after the death of the testatrix, it was 
ascertained that the contingency never could happen; and it wa? 
held that H was entitled to the interest of the legacy from the 
death of the testatrix until that time. ^ 

§ 518. We have seen, when the gift is a money legacy, that 
the general rule in England is that it bears interest after the 
lapse of one year from the death of tlie testator; and that the 
rule results from another which fixes the time of payment of 
such legacy at the end of the first year after the testator's death. 
The origin of the latter rule is said to be that the Ecclesiastical 
Court allowed that time to the executor to get in the estate and 

'4 My. & Cr. 303. ^l En- Law & Eq. R. 36. 


pay the legacy before lie should be compelled to account. Id 
Sullivan et iix. v. Winthrop et aL, Judge Story says, that 
whatever may be its origin, it is irrevocably fixed as a general 
rule, and is not now open to controversy, and that it was doubt- 
less founded in the convenience of having a fixed period applica- 
ble to cases in general. * Fut why is it that interest in England 
is generally payable upon such legacy from the end of the first 
year] It is because the legacy is then payable. That, then, 
is the general rule, and it renders it necessary, therefore, as we 
liave said, in each state to inquire when the executor is bound 
to distribute, and that is the time from which interest is ordina- 
jily chargeable.- But we assert the reasonable rule in this 
country to be, if profit accrue to the estate by reason of such 
detention, and be not needed by the general assets, that it pas- 
ses as an adjunct to the legatee, or if the executor were bound 
to make profit and neglected it, that he is personally chargeable 
with what he ought to have made, and that then the amount so 
fharged passes as if it had actually been made. 

§ 519. An exception to the general rule, that interest does not 
accrue till after the legacy becomes payable, exists when no 
profit accrues to the estate, whenever an intention appears that 
it shall be payable, for the general rule after all is founded up- 
osi presumed intention. An implied intention is held to exist in 
every case, unless rebutted, in which a legacy is bequeathed to 
a K'L-'.or, whom the testator was under a moral obligation to sup- 
l)ort, and for whom no support was provided, in the meantime ; 
because it is presumed that the testator intended to fulfil a moral 
ub'igatioD.^ A grandson, therefore, as a grandson merely, is 
not entitled to interest on a legacy from the death of the testa- 
tor. The reason of the exception and the exception itself in- 

'1 Sum. C. C.Rep. 12. 

niallet & Walker, ex'rs, v. Allen, &c., 13 Ala. 554. 
^Dawes v. Swan et a/., 4 Mass, 215. 


favor of the minor extend beyond the legacies in pnescnti 
which are regularly payable at the time of distribution, t(' 
legacies payable at a future day, as to a son payable at twenty - 

§ 520. The rate of interest in this country is determined by 
the statutes of the several States, though the English rule of 
four per cent, seems to have been adopted in Mississippi.^ 

§ 521. When the quasi particular tenant has a power to dis- 
pose of the property absolutely for a particular purpose, then., 
of course, that enlarged measure of enjoyment is governed by 
the terms of the gift, and must be justified by the facts. ^ 

§ 522. We may new proceed to enquire as to the rights of 
the party entitled infuturo. In the first placL*, he is entitled to 
have an inventory of the property, as we have already said in 
another place, and if it be not given he can obtain it by a bill 
in chancery ; and if the property be at any time in danger of 
being lost, destroyed or carried out of the State, he is entitled 
to an injunction and to security for its forthcoming at the time 
when he shall be entitled to the possession. And in Hinson & 
Wife V. Pickett, it is said that the defendant in such case cannot 
defeat the jurisdiction of the court by setting up a paramount 
title in one of the plaintiffs.* 

§ 523. In Cordes et ah. v. Adrian et al. there was the follow- 
ing bequest : " I give and bequeath to my son, Thomas Evans 
Cordes, the following negroes : Sicily, &c., together with the 
present and future issue of the females ; and should he die with- 
out lawful issue, the said negroes shall return to my other sur- 

HValker et al. v. Walker's Ext, 17 A!a. 396; See Sullivan ef mj: v 
VViiithrop ct al.,A Sum. C, C. Rep. 1, whsre many cases upon the sub- 
ject are collecred. 

♦::Ala. 559. 'Scoti v. Perkins, 28 Maine 22. 

*1 Hill's Ch. Rep. 44. 


viving children." Two of the negroes were levied on and sold 
under an execution against the legatee, and were purchased by 
the defendant Adrian. The court said : " It has been the con- 
stant course of the court to require security for the production 
of slaves at the termination of the life estate, or any other con- 
tingency, when the rights of remaindermen spring upj whenever 
those rights appear to be in danger. They appear to be in 
danger in this case, as Mr. Thomas E. Cordes is in debt and 
( mbarrassed, and the property is not only in danger of being sold 
and scattered for his debts, but it has actually occurred with 
respect to two of the slaves now in question." ' 

§ 524. In Clark k Wife v. Saxon & Wife, the wife cf the 
defendant had a separate estate for life in some, and an undi- 
vided interest as tenant in common in others, of the slaves in 
question, all of whom were in the possession of the defendants, who 
were about to remove out of the State. The bill was filed to compel 
h-er and her husband to give security for the fortliconiing cf the 
-laves, and it was held that she v^as trustee for those claiming 
in reversion, that she could not plead her coverture in abatement ; 
and on the proof it was ordered that she and her nusband give 
security not to remove the slaves beyond the State. ^ 

§ 525. In Lee v. McBride, Nash, by deed, conveyed to his 
daughter Judith two slaves, Sam and Harrj^, for life, with 
remainder to the plaintiff, reserving to himself the use of the 
negroes during his life. The donor died, and shortl}'' afterwards 
the defendant purchased the interest of Judith in the slaves, 
took them into his possession, carried them beyond the State 
and sold them. The bill further alleged that McBride was in- 
solvent, but still had in his hands the money obtained for the 
negroes, and that the plaintiff believed that he would lose his 

'Id. 157. Hd. 69. 


interest in the negroes unless ?*icBride should be compelled to 
give security for their va.lue. The court said : '^ To v/hat ex- 
tent the plaintiff would be entitled to relief, if the defendant 
had sold the whole property in the slaves or had carried thora 
to parts unknown to the plaintiff, Yvith the intent to Laffio 
his search for t'lem and defeat his right, it is not necessary at 
present to say, nor, in some cases which might be supposed, 
would it be very easy to .-ay. As the case stands, it is not es- 
tablished that the defendant professed to sell the negroes abso- 
lutely ; but the contrary is to be inferred. The bill does not 
distinctly charge, nor does the decree iind an absolute sale, but 
only in general terms that the defendant sold the negroes. As 
the bill is thus vague, it is iioi seen how the court could declare 
such absolute sale — thereb}^ ^'^/-i^g beyond the allegations cf the 
party. But, the defendant has answered, assuraing the bill to 
contain that allegation ; and he denies it explicitly, and says 
that he sold the negroes as he bought them, that is, until the 
plaintiff should come of age. Th^^re is nothing to contradict 
that, or to bring it into doabt, but the single fact that tne de- 
fendant carried them to tbe adioiniuo; State of Virj^inia and sold 

■J <D O 

them. We are not prepa,red to say that in any case that cir- 
cumstance by itself would be suScient to establish that the srde 
was of a greater interest than belonged to the seller. But it 
cannot have that effect here, in opposition to the positive aver- 
ment in the answer, and where the price received, as stated in 
the answer, (which the plaintiff admits to be true, in that respect, 
by taking his decree for the sum,) was much less than the value 
of the whole property, and only a fair price for the real interest 
of the seller. It ought not, therefore, to be assumed that the 
defendant sold the negroes for more than the term for which he 
owned them, nor a decree made upon that hypothesis, but the 
contrary. Then, if the defendant sold only the right he had, 
it cannot be questioned that he would have been justifiable in 
making it, had he made it to an inhabitant of this State, and not 


upon a concerted purpose that the vendee should carry them out 
of the State in such a manner as to place them out of the know- 
ledge and beyond the reach of the remainderman o Does the 
mere act of carrying them out of the State and selling them 
entitle the remainderman to redress against the particular tenant? 
The sale even of the ahsolute property does not displace the 
remainder, and the person entitled to it may, upon the falling in 
of the particular estate, recover the negroes themselves. We 
will not lay it down that the remainderman may not have an 
Immediate action on the case at law, or be relieved in equity, as 
upon an injury to his rights as a remainderman by reason of the 
destruction of the property of which he is entitled to the re- 
rnainder. But without pursuing that idea so as to ascertain in 
detail the different remedies and their extent in such a case, it 
may be safely laid down, that .c is not in law or in equity an 
injury b}^ the particular tenant to the remainderman, simply to 
move slaves to another State, or thus to remove them and sell 
nothing more than his own interest in them. For if the remain-- 
derman knows the slaves and wh^re they are,, he has, against the 
purchaser, by way of securing his enjoyment of the slaves when 
his estate comes into possession, a right to the same remedy he 
had here against the particular tenant, and it must be supposed 
that he will there get due redress according to his right. If, 
indeed, the remainderman sees th.^t the parlicular tenant is 
about to remove the slaves out of tins State, he may anticipate 
that purpose, and upon his application tlie court vrill restrain the 
execution of the purp-v^e and secure the forthcoming of the 
property. But where the remaindeiman lies by, and the other 
party does nothing more tnan part from his right to a person in 
another State, it is not seen that the remainderman has any 
cause of action therefor against the fcrmer tenant of the partic- 
ular estate, or any ground for requiring him in equity to be 
responsible for the production of slaves over which he has no 
longer a control, and which the law did not prohibit him from 


alienating. It is plain, therefore, that, after a sale by a par- 
ticular tenant, the right to redress against him in either court 
depends upon the intention to injure the remainderman by the 
sale, and upon an injury to him resulting in fact therefrom. 
Now that cannot be assumed when it does not appear that the 
slaves, though in another State, are not known to the remain- 
derman, and as accessible to him as they were here before the 
sale. Here the bill states only, that a few days before the suit 
commenced, the defendant sold the negroes beyond the limits of 
this State ; and it does not allege that the plaintiff did not know 
where they were, and could not trace them and have adequate 
remedy there by having their production duly secured ; nor does 
it seek any discovery of the defendant's vendee, nor state any 
reason whatsoever for not following the property. Therefore, 
as the defendant was entitled to the interest sold by him, the 
court cannot hold that he had not a right to make the sale, though 
to a person out of the State, and that it was a fraud in him so 
to do ; since the plaintiff neither charges nor proves that the 
slaves were thereby placed beyond his knowledge or reach, or 
that he has been otherwise defrauded, or in fact injured in the 

§ 526. In Lyde et ah. v. Ta3'lor et ah., the court said : 
" The fact that the slaves have been conveyed absolutely to the 
different individuals who assert absolute title to them and deny 
the right of the complainants, constitutes a sufucient grouni] to 
warrant the interposition of the court in favor of the complain- 
ants, and to make such order and decree as will secure to them 
the future enjoyments of their rights."^ 

§ 527. In Medley v. Jones, Jones had, by deed, conveyed to 
Elizabeth Rogers certain slaves for her life, and afterwards he 

'6Tredeirs Eq Rep. 533. 

^17 Ala. 276; see also Ramey et als. v. Green, Adm'r, 18 Ala. 77L 


filed a bill praying for a 7ie exeat and injunction to prevent the 
tenant for life from removing the slaves from the State until se- 
curity should be given for their production to him at her death. 
The chancellor decreed that the security should be given, and 
further decreed that if bond and security according to the prayer 
cf the bill were not given within three months from the end of 
the term, lAie slaves in question should then be delivered into thj 
custody of Jones, to be by him held as his own goods and chat- 
tels during the life of Elizabeth Rogers, or until such bond and 
security should be given as aforesaid ; that in the event of their 
being delivered to the complainant, he should account for the 
annual profits thereof to Elizabeth Rogers during her life, or 
until such bond and security should be given, &c,^ This case 
is cited to shovr the practical working of the remedy. 

§ 528. In Bonner & Wife v. Bonner, the general rule was re- 
cognised, but it was held that the court would not exact security 
for property which had been received by the quasi tenant for 
life in exchange for the propertj^ limited.^ But this is contrary 
to principle. The true doctrine was laid down in Cheshire v, 
Cheshire et ais., where it was held, that when the particular 
property has been cc nverted into another species of property by 
the tenant for life, or tliose who claim in privity with him, the 
remainderman ma,v eh:ct to folloAV and take the fund in its 
changed form ; for instance, when it has been removed out of the 
State and sold, he may claim the proceeds of the sale.^ The 
same court in which Boimer& Wife v. Bonner was decided, held, 
in Eing et al. v. Sharp, that if a tenant for life sell the property 
absolutely to a third person, such third person becomes a quasi 
trustee for the remain Jlevman ;* and consequently that he is lia- 
ble to the remainderman as fully as the tenant for life. 

'5 Mun. 98. ^7 Hurnp. 436, 

=2 Iredell's Eq. 669. ^g Hunip. 55. 


§ 529. In McDougal et als. v. Armstrong, it was held that if 
-a. purchaser of a chattel under an execution against a tenant for 
life claim the entire interest, a Court of Equity would be author- 
ized to require such purchaser to give security for the forthcom- 
ing of the chattel at the expiration of the life interest ; ' and 
this seems also to be true if the quasi particular tenant were to 
claim the absolute ownership himself. 

§ 530. In Alexander et als. v. Espy, a limitation was made 
to a A for life, with remainder to B ; B died in the lifetime of A, 
and the next of kin of B filed a bill to have security for the forth- 
coming of the property, and the bill was dismissed without 
prejudice, because the administrator of B was not a party. The 
court said : " Creditors have the first claim upon the property ; 
and the administrator, their trustee, as well as that of the next 
of kin, and the only representative of the deceased, must be be- 
fore the court. The title of complainants is too remote."^ 

§ 531. In Ramey et als. v. Green, Adm'r, it is said that pos- 
session of chattels by a wrong-doer claiming the absolute prop- 
erty is sufficient ground to authorize a Court of Equity to inter- 
pose in behalf of the remaindermen for the protection and 
security of the property. ^ 

§ 532. It seems very clear upon principle, that a party having 
a future vested interest in chattels personal may maintain an 
action on the case for an injury done to his interest, either by a 
prior holder of the chattels or by a stranger. 

532a. But in order to maintain an action at law it is neces- 
sary, of course, that the party should have the legal title. 
Now, where the gift is by will, the assent of the executor is 
necessary in order to pass the legal title ; but it is a general 
rule that an assent to a particular interest will inure to him 

»7 Id. 428. 27 la. 157. M8 Ala. 771. 


to whom the limitation over is made. The exception to the 

general rule is, that where anything remains to be done, after 

the expiration of the particular interest, by the executor to give 

effect to the intention of the testator, there an assent to a par- j 

ticular interest will inure to the limitation over. ^ 

§ 533. The time at which the person having a future interest 
in chattels is entitled to possession is generally determined by 
the terms of the instrument. The proposition, however, is not 
universally true, as appears by the case of Black v. Beattie. la 
that case, A being an unmarried woman, conveyed a slave, by 
deed, to B, upon condition that B was not to take the slave out 
of her possession, or deprive her of the use and benefit of the 
slave until her death, or until she might see proper to surrender 
him to B. A then married C, who placed the slave in the pos- 
session of D, where he remained until C's death. A survived 
her husband, took possession of the slave and delivered him to 
B, from w^hom he w^as taken by D. B brought trover for the 
slave, and it was held that he could not recover, because the life 
interest which A retained vested upon marriage in her husband, 
and after his death passed to his representatives, and therefore 
A could not assent to the delivery of the slave to B.^ 

§ 534. The enjoyment of a future interest does not com- 
mence until the time limited, except in the case of the moral 
obligation mentioned, when treating of the enjoyment of partial 
interest in prcesenti. 

§ 535. We come now to enquire what the party having the 
future interest is entitled to when his interest falls into posses- 
sion or enjoyment. 

§ 536. If money be the subject and he is a quasi tenant in 
^LeDoir v. cylvester. 1 Bailey 645. 

=2 Mur. 2^10 ; S. C. N. Car. L. Rens. 96. 


fee, he is entitled to the money, unless a trust prevent it ; if he 
is a quasi particular tenant, then he is entitled in the same "way 
that quasi particular tenants in prcescnti are entitled. 

§ 537. In Silbury v. McCoon it is laid down that so long as 
property wrongfully taken retains its original form and sub- 
stance, or may be reduced to its original materials, it belongs to 
the original owner, without reference to the degree of improve- 
ments made upon it ; and it seems that this rule holds good 
against an innocent purchaser from the wrong-doer. But it 
seems that if the property so wrongfully taken afterwards come 
into the hands of an innocent holder, who, believing himself to be 
the owner, converts the chattel into a thing of a different species, 
so that its identity is destroyed, the original owner cannot re- 
claim it. This distinction, however, does not exist in favor of 
a wilful wrong- doer. He can acquire no property in the goods 
of another, either by the wrongful taking or by any change 
wrought in them by his labor or skill, however great that change 
may be, provided it can be proved that the improved article was 
made from the original material. And it is said that the civil 
and the common law seem to agree upon this point. * 

§ 538. According to the doctrine so laid dowE^ a party enti^ 
tied to a future interest in a chattel is entitled agaij\c'. the prior 
taker or his representatives to the cnattel, although :':■ form and 
nature be entirely changed, provided he can prove th .t the new 
chattel was made out of the old one. Thus, if a siWcr cup be- 
given to A for Hfe, remainder to 13, ?,nd A have the cup made 
into spoons, B will be entitled to the spoons 3 or if he prefer it, 
he may recover the value of the cup. But if A were to sell the 
cup to a person having no notice of the subsequent interest, and 
without £uch notice the purchaser were to convert it into spoons, 

'3 Com. 379) see also Driver v. Riddle, 12 A!a. 590. 


B could not recover the spoons, though he could recover the 
value of the cup. If, however, the purchaser had notice, he 
would be precisely in the same situation that his vendor ^YOuld 
have been. 

^ 539. If a third person should wrongfully take the chattel 
out of the possession of A and convert it into another chattel^ 
and A were then to die, B would be entitled to recover the chat- 
tel into which his had been converted^ provided he could prove 
that the converted chattel was made out of his chattel. If B 
should prefer the value of his chattel, he may recover it, instead 
of the chattel converted. 

§ 540. If the party having a future interest is entitled to the 
possession upon the death of the prior taker, and the property 
be taken and claimed by his administrator or executor, as a part 
of the assets of the estate, the action must, of course, be against 
the executor or administrator personally, and not in his repre^ 
sentative character. 

§ 541. "When the conveyance is simply for a limited periody 
with or without a gift over, and the property is to be converted, 
there is no principle necessary to be known in taking the ae- 
count, except what has already been stated in treating of the 
rights of the partial owner ; except in case of an incumbrance, 
or except the property be lost. In regard to the discharge of 
an incumbrance, we need not say anything now, as we shall take 
up that subject regularly after a little while. If the property 
be destroyed, or the fund on security be lost, then the case falls 
under the ordinary principles which govern trustees. 

§ 542. If the particular tenant has the power of appropriating 
the principal to some particular pi"«rpose, it is a mere questipn 
of fact how much has been appropriated ; though it is a mere 
question of law whether the appropriation v/as justified by the 
terms of the conveyance. 


§ 543. If the property is to be enjoyed in specie, tlien unless 
there is something in the terms of the conveyance varying the 
rights of the parties, or something in the nature of the property 
which varies their rights, then the party entitled to the future 
interest is entitled to the property as it is at the termination of 
the particular interest, if the particular tenant has not been 
guilty of some act unauthorized by his partial owneifchip by 
which the property has been lost, destroyed, or injured, and 
then the party having the future interest is entitled against him 
to the value of such property at the time the future interest fell 
into possession. 

§ 544. The terms of the conveyance may vary the mode of 
taking the account, as in Upwell v. Halsey, where the gift was ; 
"I make my vrife whole and sole executrix of all my personal 
estate ; and my will is, that such part of my personal estate as 
she shall leave of her subsistence, shall return to my sister," the 
court held that she was entitled to dispose of so much of the 
principal as was necessary to her subsistence, over and above 
the interest, and decreed the account to be taken according to 
that construction of the will. * 

§ 545. And so in every case must the account be taken ac- 
cording to the construction of the instrument creating the in- 

§ 546. In Harrison et al. v. Foster et al., there was a gift to 
the wife during life, or widowhood, of a general residue of pro- 
perty, consisting of negroes, stock, provisions, &c., to use in any 
necessary or lawful way — to sell for a valuation, dispose of all 
or any part thereof for her conveniency, or necessary use, with 
a limitation over, and upon the question of account, the court 
held that her executors were not chargeable with the perishable 
articles, except so far as they came to their hands, or so far as 

MO Mod, (442.) 


sold by her, not for her convenience or necessary use. ^ This 
would have been unsatisfactory had not the court previously 
said : " It is clear, we think, that the testator intended his wife 
should have the entire use of all his chattels, and that .this use 
was to be in accordance with the custom of the country," 

§ 547. In Finley v. Hunter, Dargan, Ch., in delivering the 
opinion of the Court, said: " Thomias Finley, by his will, gave out 
of nineteen negroes, (one of them old and a charge,) six of said 
negroes and a considerable portion of his household goods, to his 
wife, Jane Finley, to her, her heirs and assigns forever. And 
that she might have a comfortable support and maintenance, he 
gave her the tract of land on which he lived, together with all 
his other negroes and property of every kind whatsoever, that 
he should die possessed of, for her use during her natural life. 
At his death the surviving wife, under the last mentioned clause, 
took into her possession, and has enjoyed all the property given 
to her for life ; consisting (besides the land and negroes) of $283 
in cash, and of various articles of personal property, generally 
possessed by a planter of his means, living on his farm; namely, 
of horses, cattle, hogs, sheep, carriage, wagons, agricultural 
implements and provisions. Jane Finley being dead, her per- 
sonal representative is called upon to account to the remamder- 
man for the various articles of personal property, of which by 
the will she was to have the use during her life. And some of 
the articles being consumable in their use, and having been con- 
sumed, and some of them having been totally worn out by the 
wear and tear incident to their use, and the operation of time, 
and others, though remaining, having become deteriorated in 
value from the same causes, the question is, upon what princi- 
ple is the estate of the life tenant to account 1 

" This court discovers in the will itself a solution of this ques- 
tion. The second clause of the will is as follows : — " After the 

'9 Ala. 955. 


death of mv wife, Jane, and after the payment of the several 
legacies, &c., I give and bequeath to Reuben Finlej, of the 
State of Tennessee, &c. the aforesaid tract of land, together 
with all the negroes, and all the other property belonging to my 
estate, of what kind soever, real and personal, at the death of my 
said wife J Jane, to him and his heirs forever." The court is of 
opinion, that the testator intended to give to his wife the us^*. 
and benefit of the property, specifically, for life, with all the 
rights and privileges incident to its possession and enjoyment. 
^11 the property belonging to his estate at the death of his wife^ 
he gave to Reuben Finley, after the death of his wife. Such as 
the property remained at the death of his wife, in the condition 
it was after her specific and legitimate use of it during her life, 
it was to go over to Reuben Finley. It follows from this, that 
her estate is not responsible for articles that were consumable in 
their use ; nor for the horses, mules, or oxen that died from 
disease or old age ; nor for the destruction of articles that were 
worn out and went to decay in their lawful use ; nor for the de- 
teriorated value of those that remain, whose value has been im- 
paired by the abrasions of time. In regard to the articles that 
are forthcoming, as well as those that are not, the question will 
be, whether they have been rightfully used and enjoyed by the 
tenant for life. If this be decided in the affirmative, the estate 
of the life tenant is not liable, and the remainder-man must take 
the articles that remain, in the condition in which he finds them. 
In regard to the cash, the principal must be accounted for ; and 
as to the live stock, in flocks or herds, the rule is, that the ori- 
ginal stock must be kept up or accounted for. These are repro- 
ductive, and with good management, perpetuate themselves. 
Yet even in regard to this kind of property, the life tenant wil5 
be permitted to show that they have been destroyed or dimin- 
ished without neglect or default on her part."* 

13 Sn-obh. Eq. 84. 



§ 548. The nature :}f the property may vary the mode of 
taking the account. Thus, if the property limited be a stock 
of hogs, it seems to be the better doctrine tha. the party having 
the future interest is entitled to the number of the original stock, 
unless the particular tenart, or those claiming under him, can 
show that they were diminished without default on the part of 
the particular owner. If the property limited be slaves, the future 
owner is entitled, as we have before asserted, to such of the ori- 
ginal number as still live, and to such increase as there may 
have been. If the property be such as is consumable in use, and 
it is not a case of actual or constructive conversion, then if the 
party in remainder is entitled to any thing, he is entitled at least to 
so much of the property as specifically remains, though it seems 
that he ought to be entitled to so much as ought to have remained, 
because the party entitled to the first interest ought not to use 
the property otherwise than according to the usual and ordinary 
way of using such property. 

§ 549. But let us take the opinion of a court upon the sub- 
ject. In Robertson et als, v. Collier & Wife, Harper, J., in 
delivering tbe opinion, said: "An extract from the opinion of 
Judge Nott, in the case of Devlin v. Patterson, will, I think, put 
the matter upon its true footing : " There is another view of 
the subject which deserves consideration, and which is somewhat 
peculiar to the situation of this country. Lands are sometimes 
given to one for life, together with the slaves, stock of horses, 
cattle, plantation tools and provisions, with a limitation o\er. 
In such case, the perishable articles cannot be considered as be- 
longing absolutely to the tenant for life; neither can they be sold, 
because they are necessary for the preservation of the estate. 
The tenant for life must therefore be considered as a trustee for 
the remainder-man, and must preserve the estate, with all its 
appurtenances, in the same situation in which he received it. 
He may therefore be required to give an inventory of the pro- 


"pertj, or security for its preservation, according to circumstan- 
ces. The tenant for life will be entitled to the increase of the 
stock and the rents and profits of the land ; but he must keep up 
the stock of cattle, horses, provisions, and instruments of hus- 
bandry, in the condition in which he received them. For, al- 
though some of the articles may be cousumable in the use, and 
others are wearing out by the attrition of time, yet when taken 
altogether, being reproductive, the estate must be made to keep 
up its own repairs." These views are so full and explicit, that 
little need be added to them. The principle is the same, though 
extended in its application, by which a tenant for hfe in England 
is forbidden to waste the estate, and is required to make ordi- 
nary repairs, or any other tenant is required to treat the estate 
in a husband-like manner, or the legatee for life of a flock or 
herd, while he takes the increase, is required to keep up the ori- 
ginal stock. The tenant for life is entitled to the use of the 
estate ; but it is such use as a prudent proprietor would make 
of his estate. The profit of an estate is the nett income after 
defraying all necessary expenses ; and to renew a plough that is 
worn out, or replace a horse or mule that dies, comes under the 
head of necessary expenses. Thus, the relative rights of the 
tenant for life and remainder-man will be the same, whether the 
estate be sold and the proceeds vested, or retained in kind. If, 
at the termination of the life estate, all the articles of the sort 
mentioned are not in as good condition as when he received it, 
the tenant must make good the deficiency."* 

§ 550. The last sentence seems to be objectionable, for the ten- 
ant is entitled to the legitimate use of the articles, being bound, 
however, to make such repairs as good husbandry requires. The 
opinion calls for another remark, since it may well be denied that 
there is anything in such a gift " peculiar to the situation of 

n Hill's Ch. Rep. 347. 


this country." The same general principle must be held t& 
govern the account between a particular tenant and him in re- 
mainder of land, stock, provision, &c., whether the land. is to be 
cultivated by slaves or by "helps." 

§ 651. In Hayle and Burrodale, a farmer bequeathed his 
stock, consisting of corn, hay, cattle, &c., to his wife for life, 
and after her death to the plaintiff; and the Master of the Rolls 
said, " if any of the cattle were worn out in using, the defend- 
ant was not to be answerable for them; and if any were sold as 
useless, the defendant was only to answer the value of them at 
the time of the sale;" and an account was decreed to be taken ac- 
cordingly. * The latter part of the decree is correct, and so 
may that part of it have been in regard to the cattle worn out 
in using, but as a general rule, it is in contradiction with other 
eases of at least as high authority. 

§ 552. In Flowers v. Franklin* a testator devised a farm, 
and bequeathed the stock, provisions, farming utensils belong- 
ing to it, to his wife during her life, to be improved for the use 
of the Jamily, with a limitation over. '1 he wife survived her 
husband, and about ten years afterwards died, having lived up- 
on the farm and cultivated it until her death. One question 
was, whether those in remamder were entitled to the stock and 
grain which were on the farm at her death 1 

Kennedy, J., in delivering the opinion oi the court, said : "It 
has, however, been objected against the cialm of the plaintifis, 
that the property is not identically ttie same with that given by 
the will to the widow ; that it is only the product or increase 
from it,, and therefore does not fail within the terms of the be- 
quest over to the piaintiffs, after the death of the widow. This 
objection, unless supported by what may reasonably be consid- 
ered to have been the intention of the testator, ought not to pre- 

M Eq. Ca. Abr. 361, { 8. . «5 Watts, 265. 


vail. The great object of the testator, in giving his wife the 
farm whereon he had lived himself with his family as the head of 
it, and the personal property already specified with it, was that 
she might continue to live thereon during the remainder of her 
life, in the same manner, as nearly as possible, that she had 
done with himself previously thereto. This is made in some 
degree apparent from his furnishing her with the means, appro- 
priated by him expressly, too, to that end, of keeping the family 
together around her upon the farm as long as she lived : and, 
still further, from the circumstance of most of the personal pro- 
perty given to her being immediately connected with the farm, 
and almost indispensably necessary to a proper and advantage- 
ous enjoyment of it, so as to aiford the family the same comfort 
and convenience which they had been accustomed to during his 
life. Beside, a great portion of the property being stock, com- 
posed of horses, cows, sheep, and swine, such as is usually kept 
on a farm, and without which the accommodation expected to be 
derived from the occupation of it could not be obtained ; and 
being also not only of a perishable nature, but a portion of it 
such as could only be used by consuming it, the testator there- 
fore knew perfectly well that the identical property which he 
was giving, with the use of the farm, to his Vfife, for the use of 
herself and the family, would not likely be in existence at her 
death; and hence it is not likely that it was that, or that alone, 
which he intended to give over to the plaintiffs. But he knew 
also, that in the usual economy and management of a farm, va- 
rious kinds of stock suitable to carry on the business of it, and 
to make it capable of being used so as to produce the requisite 
comfort and support for the family residing thereon, that every 
year more or less of those things would be consumed, lost or 
worn out, but their places would of course be supplied by others, 
in fact, though looked upon generally as the same stock or pro- 
«uivtv. New implements of husbandry would be obtained, from 
time to time, to supply the want of those lost, broken or worn 


out ; horses dyiiig, or becoming from any cause unfit for the re- 
quisite service, would be replaced, either by others raised from 
the old stock, procured in exchange for those becoming unfit, or 
purchased with the proceeds of the farm ; and uniformly the 
place of cattle, swine or sheep used for the purpose of being con- 
verted into beef, pork, or mutton, are supplied by the annual 
increase or progeny t\ om the original stock j thus filling up and 
occupying the same space, and in reality, while kept upon the 
same farm ?T.d bcid by the same person, regarded generally as 
the same property. It is also manifest from the provisions of 
the will of the testator, in favor of his wife and family, that he 
intended nothing more than a corufortable support and mainte- 
nance for them^ at most; and that he knew that what he was 
about to give coald not be made use of as a capital or stock 
from which anyihiiig beyond that could be derived. It appears 
tberel'ore to be Kore in accordance with what would seem to have 
been the intention of the testator, to conclude that he Intended 
exery thing of the same kind with that given by his will to his 
wife, for the use of the family, and supplying the place of what 
had been consumed, Avorn out, lost, or disposed of in any way at 
the death of his v/ife, shcuhi go over to the plaintiffs. If he did 
not so intend it, to whom, I would ask, does the property in 
question belongs which is called the increase; but, more properly 
speaking, that which, according to the necessary course of events 
in every such case, has been substituted for and taken the place 
exactly of the original, which has either perished or been con- 
sumed"? Certainly not tc the next of kin of the testator, as 
property that be died possessed of, without having disposed 
thereof by his will, because ail the right and authority he had 
over it he ckujhj mtenoed to part with by his will. Neither 
can it belong to the next of kin of the widow, for it is perfectly 
manifest, the gift was not to her absolutely for her own use, but 
as trustee fjr the use of herself and family during her life merely. 
And it can scarcely be imaginedj I apprehend, that the surviv- 


ino: members of the familv, for whose use, m common with the 
widow, it was holdea by her daring her life, caa have any claim 
to it, because their interesto aa ^veii as that of hers, was to termi- 
nate, as has lieu preocj cioarlj shown,(a) by her deathc 

5) I 

§ 553. The comment which this case requires is, that a bet- 
ter argued case can scarcely be found. 

§ 554. In Horry & Trapler v. Glover et al. it is said that as 
a tenant for hfe of slaves is a trustee for the remainderman, he 
is bound to account, and the burthen of the proof is on him to 
show the increase or diminution of the original number ; and in 
defai-ilt of accounting, he shall be charged with the value of 
such number as the original stock may reasonably be supposed 
to have increased ; subject, bowever, to evidence of peculiar cir- 
cumstancesj accic'ent, or mortality, ^ The general rule is also 
asserted, in that case, that if the bailee refuses to deliver prop- 
erty after demand made, an:^ the property is injured or de- 
stroyed, or afterwards perishes, he i-z liable for its value ; and it 
is there said that the rule extends to particular tenants holding 
over, and to vc>inteers and purchasers without notice claiming 
Tinder them. And it w?.s therefore held in that case, that a 
volunteer claiming under a tenant for life was liable for value of 
slaves who died after the filrng of the bill '\)j the remainderman 
to compel a specinc delivery(6) of them, t 

§ 555. In regard to incumbrances^ the old rule was that a 
tenant for life was bound to pay one-third of the amount, and 
the remainderman was held bound to pay the residue. But that 

(a)In a previons part of the opiLiion \.oi quoted. 

^5 Watts, 270. 22 Hill's Ch. Rep. 520. 

{h) When specific delivery of slaves is enforced by chancery — see 
Baker v. Rowan, 2 Slew, & Port. 361 ; Hardeman v. Sims, 3 Ala. 747. 

3Id. 538. It was also hold that hearsay coming from the negroes 
was evidence of pedigree. 


rule has long been abandoned, and now, as the Master of the 
Rolls said in Penrhyn v- Hughes, " it is perfectly established 
that the rents and profits during the estate for life must be ap- 
plied to the reduction of any interest accrued prior as well as 
subsequent to the commencement of that estate. The ground 
is, that the estate in the hands of the tenant for life is liable to 
incumbrances, is in the first place answerable, and may be made 
so by an application by the reversioners, to all the interest accrued 
upon incumbrances prior to that estate for life." He added : 
^' It is very hard, I admit. He may lose all his interest. But 
it must always be remembered, that both the tenant for life and 
the incumbrancers have a right to have the estate sold ; and if 
so, then the tenant for life will have his interest in what remains 
of the money produced by the sale ; and it will be divided, as 
the law provides, in the proportions their interests bear to the 

§ 55Q, In White v. White, the Master of the Rolls, in speak- 
ing of the old rule, said : " It was a most unreasonable and 
absurd rule ; for it being admitted that every person is to con- 
tribute according to his interest, a man of the age of eighty-four, 
with perhaps not a yesiY to live, must be said to have as much 
interest as one of twenty-one."^ 

§ 557. In Warley v. Warley the court recognised the rule 
as laid down in Penrhyn v. Hughes, and said : " But if the 
debts are to be paid ofi", so much of the estate must be sold as is 
necessary to pay them ; or if it be not divisible, the whole must 
be sold, and the surplus invested so that the tenant for life may 
receive the interest during his life."^ 

§ 558. In Peck and Wife v. Glass et al., it was held that if 
a tenant for life pay off incumbrances out of his own means, he 

'5 Ves. (!07.) 24 ygs. 33. H Bailey's Eq. 411. 


becomes a creditor to the estate for the amount paid ; and he 
has a right to have so much of the estate sold as is necessary 
for its payment. But in stating the account, the profits of the 
estate must be charged with the interest of the debts. ^ 

§ 559. The court, however, in that case seems to have adopted 
a very unsatisfactory practice in directing an inquiry as to the 
value of the life estate. The only way in which justice can be 
done is by selling so much of the estate as may be sufficient to 
pay the debts, and then charging the interest of them to the 
time of sale upon the profits recieved by the tenant for life. 

§ 560. When a particular tenant pays off an incumbrance he 
is prima facie a creditor of the estate, and the true ground of 
inference, in favor of tenant for life paying off an incumbrance, 
is the scantiness of his estate.^ But the presumption may be 
rebutted, and then it will be held that the payment was in exon- 
eration of the estate. ^ In Jones v. Morgan the Lord Chancellor 
said, " the smallest demonstration that he meant to pay it off, 
will prevent his representative from coming for the money. Here 
he paid interest much beyond what the profits of the estate 
would have discharged, which is a demonstration, prima facie, 
that though tenant for life, he meant to discharge the estate,''" 
And in Reddington v. Reddington, it was said " that Morgan v. 
Jones and Shrewsbury v. Shrewsbury were argued at the bar, 
and considered by Lord Thurlow, on the presumed intention of 
the tenant for life, as the case stood at the time of his death ; 
that is the period at which the conclusion upon the facts must be 
drawn. Although, therefore, the tenant may at one time have 
intended that the payment should be in exoneration of the estate 

'6 How. (Miss.) 195. 
^Shrewsbury v. Shrewsbury, 1 Ves. 233. 
^Reddington v. Reddington, 1 Ball & Beat. (142.) 
*lBro. Ch. Rep. (218.) 


yet his subsequent change of intention will entitle either himself 
or his representatives to repayment, since he had the whole 
period of his life to determine the matter." ^ 

§ 561. When it appears that the tenant for life intended that 
the payment should be a charge upon the estate, no lapse of 
time will avail to exonerate it ; but it seems that the lapse of 
time will in the absence of testimony be suflBcient to rebut tht' 
presumption that arises from the scantiness of his estate.^ 

§ 562. It is not necessary for the tenant for life to take an 
assignment of the debts in order to constitute himself a creditor 
with a lien upon the estate ; for the payment of the debts, 
without more, entitles him by substitution to repayment. ^ 

§ 563. The general rule in regard to real property limited in 
succession is, that if the tenant for life expend his money or 
labor in improvements upon the land, which are beneficial to the 
estate in remainder, such expenditure shall be a charge upon 
the estate, but for necessary repairs there can be no charge, for 
qui sentit commodum sentire debet ef onus."^ No case occurs to 
mind now in which the principle could be applied between a par- 
tial and subsequent owner of chattels personal. 

§ 564. The same principles of equity which govern the dis- 
charge of incumbrances between a particular tenant and a quasi 
remainderman seem equally applicable to other parties having 
present and future interests in chattels personal. 

§ 565. There are points, decided in Bentley and Bradley v. 
Long et al.y that deserve a notice here. In that case the testator 

'1 Batt. &Beat. (142-3.) 

2See Jones v. Morgan, 1 Bro. Ch. Rep. (218-9;) Redhigton v. Red- 
ingtoii, 1 Ball and Beat. (143.) 
^See cases last cited. 
♦See Hibbert v. Cooke, 1 Sim. & Stu, 552. 


gave to his wife tlie whole of his real estate and personal prop- 
erty during her life or widowhood, with remainder to his chil- 
dren, and declared : *' Should my wife have anything to spare 
cut of my estate previous to her death or marriage, I wish her 
to give it to those of my children who may marry or settle off — 
the amount to be valued and kept as an account to be deducted 
from their equal shares ; and whenever the amount of my estate 
is to be divided according to the above conditions, I desire and 
wish that each of my children shall select a person disinterested, 
and that the said persons may equally divide my estate, and 
that the whole of my said children may, by lot, receive their 
equal share." The widow afterwards, in pursuance of the 
power, gave a negro to Reuben, one of the children, which was 
valued by persons selected for that purpose at $550, and 
another negro valued in like manner at $225 to Laura, another 
child, Bentley, a creditor of Ben.'s, another child, sued out a 
ca. sa. against him, and Ben. being arrested, assigned to Bentley 
his interest in his father's estate. Bentley then procured the 
sheriff to advertise the interest so assigned to him, but the 
sheriff having had executions in his hands against Ben. at the 
time of the assignment by him to Bentley, advertised and sold 
as well to satisfy the debt of Bentley amounting to $50, as to 
satisfy the executions, which he stated had been levied on the 
said interest. Bentley became the purchaser for $500, and the 
whole amount was applied by the sheriff to the executions in 
exclusion of Bentley's claim. The sheriff, however, did not 
take the property sold into possession, nor was it present at the 
sale. The life estate of the widow had been sold, and part of 
the negroes had been removed beyond the limits of the State. 
Bradley then filed a bill claiming that he was entitled, as the 
representative of Henry, one of the children, to his interest in the 
estate, and there being ten children, that his interest would 
be one-tenth of the value of the whole property at the termination 
of the widow's interest. The court held that the widow had 


legitimately exercised the power given her by the will, and there- 
fore the value of the negroes, and not the negroes themselves, 
which she had given to the children, should be taken on the final 
distribution. The court further held that the assignment to 
Bentley was valid to the amount of his debt ; that the sale under 
the executions was void, because such an interest was not sub- 
ject to creditors except in equity ; that though the sale under 
the executions was void, yet Bentley having paid the $500 Tras 
entitled to be substituted in the place of the execution creditors 
and subrogated to all their rights ; and that as there was dan- 
ger of the property being removed he was entitled to security 
from the defendant claiming under the tenant for life for the 
forthcoming of the property at the termination of the partial 
interest. ' 

§ 566. The case of Upshaw v. Upshaw et als. contains mat- 
ter pertinent to this place. In that case a married woman was 
entitled to a vested remainder in slaves, her husband bequeathed 
property to her and bequeathed her vested remainder to A, B and 
C, and died before the remainder came into possession. After his 
death the widow paid a sum of money to relieve the slaves from 
sale for the debts of her brother, who had given her the remain- 
der, and whilst they were still in the possession of the tenant 
for life ; and after the death of the tenant for life she took the 
slaves into her possession and kept them until it was decreed 
that by election her interest had passed to the legatees of her 
husband. The Chancellor decreed that the legatees should pay 
her the amount of the debts which she had paid to relieve the 
slaves from sale, and that she should account for the profits 
of the slaves during the time of her possession, and that she 
should deliver the slaves together with their increase to the 
legatees. The whole court, upon appeal, held that she was en- 

M Strobh. Eq. 42. 


titled to interest upon the amount paid bj her to relieve the 
slaves from sale, and that she was entitled to a just and reason- 
able allowance for the support and maintenance of such of the 
said slaves as were aged, infirm, or children, or were otherwise 
expensive or unprofitable to her ; and also for such taxes, doc- 
tors' bills, and other reasonable expenses paid or incurred by her 
on their account as she should be able to prove. And so the 
decree below was modified. * 

§ 597. Now, it is very clear that the tenant for life was the 
person who was primarily liable for the interest accruing during 
the tenancy for life, and if the legatees were liable to the widow 
for such interest, the representatives of the tenant for life were 
liable over to the legatees for the amount.^ 

'2Hen. &Mun. 381. 
sSee 4 Kent's Com. 74-75, 



Acceptance — 

By remainderman, 507, n. (a.) 

By legatee, 404, n. (a.) 

Account — See "Partial Interests," "Future Interests." 

Accumulation — 

Trusts for, subject to perpetuity rule, 206 

Actions — 

On the case by persons having future interests, 532, 632 (a) 
How brought when property claimed by representative 

of particular tenant, 541 

May be maintained by particular tenants, 480 

Of trover by particular tenants, how damages computed, 480 
Against sheriff for selling entire interest when defendant 

had but partial interest, 374 

Administrators — See " Executors and Administrators." 

Advancement — 29, n. (a) 

"After,"— 213 

Alienation — 

Restraint upon, 132-142 

Proviso that property shall cease upon, 132, 137 

Of greater interest no lorfeiture, 29£, 368 

Conveys such interest alone as alienor has, 368 

Of wife's interest by husband, 446-476 

Of separate estate by married women, 391 

See " Married Women," ''Idiots," "Lunatics," " Slaves," 
"Election," "Estoppel," "Partial Interests," "Future 

Alternative Gifts — 82, 83, 111-113 

884 index. reference to sections. 

Alternative Limitations— 230-233, 348, 354-356, 303 

Animals — 

Wora out during tenancy for life, 546-552 

Replaced by tenant for life, 243-552 

Increase of, 503, 504 

" And "—Construed, " or"— 350 n. (a) 

Annuities — 

May descend like realty, but are still chattels personal, 2 

Qualified or conditional fee may be created in, 27 

Subject to rules governing fees conditional, 27 

Cannot be entailed, 27 
If tenant of, dies before payable, his representatives not 

entitled, gli 

Appointments — 

Power of, to tenant for life does not make particular es- 
tate condition prece dent, 305 
Test for determining validity of under powers of selection 

or distribution, 204 

When good pro tanto, 204 

Whether accelerated when prior appointment void, 314, 315 
Under general power subject to debts of appointor, 265 

Assent — 

Of executor to partial interest extends no further when 
no other disposition of the property made by the tes- 
tator, 277, 280 

Of executor, necessary to perfect title of legatee, 372, 494, 404 

Except, it is said, the property be delivered to legatee by 

testator, 372, 404, 493 

Of executor to legacy to himself good before adminis- 
tration, 496 

Of executor to partial interest inures to him in remain- 
der, 280, 532ff 

Exception to last rule, 532a 

When it relates back to death of testator, 404 

Assignments — See " Future Interests," " Voluntary 

« At "—Construed, 214, 218 


Augmentative Limitations — 273j 273^ 

Bailments — 

Chattels personal may be aliened by parol, subject to, 14 

Such alienation, in effect, the creation of future interest, 14 

Difference between, and partial interests, 241-244 

General rights and liabilities resulting from, sanieas those 

from partial interests, in comimili casu, 245 

Quasi estates at will, but bailments, 241-242, 290 

Increase of chattels bailed and limited for life or years, 

governed by same rule, 50>< 

If bailee refuses to deliver after demand made and the 

property afterwards perishes, or is injured or destroyed, 

he is liable for its value, . 554 

Bonds--- See "Future Interests," " Partial Interests.'^ 

<i But ''— 2B3 

Case — See Actions. 

Class — 

Where limitation vests in interest at different times 

whether they take as joint tenants, 32s 

Vests in possession, whether it can open to let in others 
afterwards coming within, 328 

Certainty — 

In what required, 69 

In the subject of the limitation, 70-79 

In the object of limitation, 80-11 4 
As to the event upon which the limitation is to take effect, 1 1 5 

In the intent to limit, 1 1 7-1 1 9a 

Same principles in regard to deeds and wills, 116 

Chattels Personal— 

Defined, 1 

Different kinds of, 2 

Reason why so called, 3 

Position in our jurisprudence, 6 

Limited like realty, 23 

Exceptions, 24, 27 

Severance of, from freehold, 1 

Change of form of, when it affects ownership, 537-539 


Chattels Personal — {continued.) 

Of title to, see "Title." 

See " Limitations of Chattels Personal." 

Chattels Real — 

Defined, 1 

Limitation of, 1 1 

Reversions in, 292, 293 

Children — 

Who entitled under gift to, 97, 328 

" Born in my life-time" whether posthumous child takes, 209 
Limitation to A and his children, how construed, 227 

See "Class," "Persons." 

Choses — 

In action, defined, 2 

" " may be limited in succession, 15 

Exceipt ex delicto, 18 
Of the wife, see " Married Women." 

In enjoyment, defined, 2 

In possession defined, 2 

Class — 

When gift to, falls into possession of part, others subse- 
quently coming within description not entitled, unless, 32S 

See "Remoteness," "Children," "HeirSj" "Nieces," "Ser- 
vants," " Legatees," &c. See " Appointments." 

Gift to all of, except one, viz : all take, S7 

Clay — When chattel personal, 1 

commorientes — 478 

Conditions — 

When construed to be precedent, 211-226, 313 

See ''At," "When," "Then," "If," "In Case," "In the 

Event," " After » 
When precedent, and illegal, contrary to public policy, 
contrary to good morals, uncertain in themselves, or im- 
possible, 30-36 
When subsequent, and illegal, &c., 30, 287-289 
In regard to marriage, when precedent, 37 


Conditions — {continued.) 

In regard to marriage, when subsequent, 3b 

Not to dispute validity or disposition of will, 39-42 

To release claim on testator's estate, 42 

Jn terrorem., 38-43 

" " doctrine, derived from civil law, 43, 45 

*' " " does not apply to deeds, 45 

'* " " Lord Eldou's criticism, 44 

Whether void when annexed to any preceding estate, and 

there is a limitation over, 46, 316 

When legacy is made to depend on estate being worth a 
certain amount after debts paid- time when value of 
estate estimated, 47 

When vv^idow dissents from will, in such case, her dis- 
tributive share so far as it exceeds the amount of the 
legacy to her is not to be included in estimating vulue 
of estate, 47 

Whether the taking effect of a prior limitation is a condi- 
tion precedent to the taking effect of a subsequent limi- 
tation by way of remainder, 303, 313 
Whether the taking effect of a prior limitation is a condi- 
tion precedent to the taking effect of a conditional limi- 
tation, 347-349 
Rule not varied by gift of power of appointment to prior 

limitees 305 

Whether they must be performed before conditional limi- 
tations to take effect upon them can take effect, 350 353 
Whether they must be performed in cases of springing 

interests, 366 

In restraint of alienation, 132-137 

Distinguished from limitations, 132-137, 347 

Operate as limitations when, 286 

Amounting to possibility upon possibility do not render 

limitations of chattels personal void, 302, 34(3 

Promise by father to give a slave to his son by will, pro- 
vided the son will give the slave to a certain grand-son 
over and above his share, the grand-son under a gift 
from his father is held to have tak-en the slave by way 
of advancement, 29 n. (a) 


Conditions — {continued.) 

See "At," "After," "If," "In Case," "In ths Event,'* 

"Then," "When," 
See "Without," "HavuigHad," "Never Having Been," 

"W^ithciit Having," '-Without Having Been." 

Conditional Limitations— 

Defined, 337 

Origin of, 330 

Distinguished from remainders, 338, 340, 346 

How they differ from augmentative limitations, 341 

May be created, in chattels personal, by will or by deed 

directly, or by way of trust, 342-344, 10-13 

May be created even by parol trust, 10-13 

Cannot depend upon a void condition, 337 

See "Conditions" for what condition void. 
Must be certain, see "Certainty." 
Event upon which they are limited must qualify interest 

upon which they are grafted, 151-155 

Cannot be made to same person who takes the interest 

upon which they are engrafted, 341, 273a 

Subject to rule against perpetuity, 340 

May depend, however, on a possibility upon a possibility, 340 
Cannot be prevented from taking effect in the event upon 

why they are limited, 152. 340 

Event upon which limited must happen, as a general 

rule, before they can take effect, 264, 350, 351 

But may take effect though limitation upon which grafted 

entirely fail, 347 

And are alternative limitations unless contrary intent 

appear, 348, 349 

Void if engrafted upon limitation void for remoteness, 352 

When engrafted upon a limitation to a person not an ob- 
ject of the power, 363 
To donors heirs, 59, 364, 365 
-Always contingent till contingency happens, 357 
Generally framed to take effect in interest and possession 
at the same time, but may be so framed as to become 
certain before the time they are to take effect in posses- 
sion, 357 


Conditional Limitations — {continued.) 

May be quasi remainders in one event, 353, 230-232 

May be springing interests in one event, 358, 230-232 

May be mere alternative limitations in one event, 358, 330-332 
When prior limitation carries absolute interest subsequent 
limitation ought to be construed to be a mere alternative 
limitation if possible, and not a conditional limitation, 
provided it be not intended that prior limitation still be- 
come vested before the event upon which subsequent 
limitation is to take effect, 354, 3.';6 

Same principle extends, if needed, to cases in which the 

prior interest is a partial one, 355 

When to a class, those in esse at the time event happens 
take in exclusion of others coming afterwards within the 
description unless contrary intent appear, 328 

Conditional FEES—See " Fees." 

Confirmation — Of sale of future interests, -438 


Words importing when none in fact, 3'2f9 

'^ « " when controlled, 214,217,218 

Must happen to defeat vested interest, 264 

See '• Conditions," "Conditional Limitations," '' Rtimain- 

ders," "Limitations of Chattels Personal," '• Residue.^' 


Of Chattels into other Chattels by wrong-doer, or by an 

innocent purchaser, 537-53S 

Of perishable property limited in succession, 481-488, 512, 516 

Conveyance — 

By a man to himself or his v^'ife, 57, 58 

To his heirs, see "Heirs." 
See "Alienation," Deeds," &c. 

Copy -RIGHT— 1 

Corporations — ■ 

Not in esse, limitations to, 5^ 

Shares ia, whether chattels personal, 1, 2 


90 index, reference to sections. 

Costs — 

lij case of bill to enforce or set aside sale of reversionary 

interest, 43;^ 


When conveyance fraudulent as to, 61-63, 429, 361 

See '' Snbrogarion," 

Entitled, if power be executed, 265 

Trusts for, 66 

Caops — 

When clranels personal, I 

Particular tenant's interest m, A87-488, 510 

Cross-remainders — 331-336 

Decree — 

What on bill by remainder-man praying for injunction 

ciiKi }ie exeat, ■ 526, 527 

Ought not to be made upon hypothesis that particular 
tetiaut sold greater interest tlian lie was entitled to, 525 


Oi lands, when chattels personal,. 17 

Instruments in form of, when wills, 363, 364 

Of Sheriff, how construed, 41 Ig 

Delivery of, tantamount to delivery of property, 361 
See ''■ Limitations of Chattels Personal." 
See '" Fraudulent Conveyances," 

Delivery— See "Deeds,-' "Slaves,'^ 

Demurrer — - 

To petition for distribution witkin time allowed by sta- 
tute, 491 


Who entitled under gift lOj 100 

Gift over on failure of. too remote, 197 

Words of limitation when, 259 

Destructibtlity— See "Partial InterestSj'' "Future. 
Interests/' "Forfeiture," 

index, — reference to section?, 391 

Description — 

Of the subject of limitation, 70-79 

Of the object of limitation, 80-1 14, 210 

Of the event upon which made, 115-116 

DiMiNUENT Limitations — 273a 

Distributees — 

How their title defeated, 280 

When they take as, and not by virtue of the gift to them, 59 

Distribution — 

Time of, 491, 492 

How property, advanced to children under power given 

to tenant for life, valued in making, 565 

Interest payable from time prescribed for, 518 

Dividends — 

Particular tenant not entitled to extraordinary, 505 

Of stock, do not belong to representatives of particular 
tenant, who dies before they are payable, 514 

Donatio mortis causa — 

Chattel delivered to legatee by testator and bequeathed to 
him may be, 495 

Double Aspect — 

Limitation with, may take effect in one aspect though it 
be void or fail in the other, 314 

Double Legacies, 130 n. (a). See " Legatees." 

Election— 377-390, 418, 419 

How party bound to. must account, having had both, 365 

Emblements — 510 

Enciente— 348, 349, 366. See "Persons," 

Enjoyment — 

Difference between vescing in, and vesting in interest, 21 1 

When postponement of, makes interest future, 359a 

When particular tenant entitled to, in specie, 480-489 

« « " not entitled to, in specie 481-489 


Enjoyment — icGntinued.) 

When particular tenant entitled to enter into, 498 

When party having future interest entitled to enter into, 533, 534 
Gift of, is gift of property, 138, 139 

Postponement of, beyond period prescribed by perpetu- 
ity rule, 202 

EQUiTY~See "Injunction," "Trusts^" "Slaves," "Elec- 
tion," " Ne exeat ^"^^ " Conversion/' &c. 


At will, 241, 243 

For years, 243-245 

For life, 243-245 

With power of disposition, 156-174 

Tail, 24, 250, 252 
Difference between personal and real, in regard to time 

of rendering unalienable, 26 

Fee conditional, 25, 27, 283 

Fee qualified, 27, 262, 284 
See "Forfeiture." 

Estoppel— 396-403, 420 

Mutual, cancel, 42? 

Event — See " Certainty," " Conditions," " Conditional 
Limitations," " Remainders," " Springing Interests," 


Whether partial interest liable to, 373, 374 

Whether future interests liable to, 408-416 
Whether chattel pawned liable to be sold under; against 

pawner. 408,413 

Whether goods sold under, must be present at sale, 408-411 

Whether title passes if not present, 413 

What interest the purchaser under, takes, 375 

Executors and Administrators— 

Gifts to, S9, 260, 300 

Of person having partial interest, when entitled to divi- 
dends or interest, 51^ 


Executors and AdxMinistrators — {continued.) 

Statute of distributions applies to, equally, 491 

Assent of, to gift, whether necessary, 493-496, 372, 404- 

Assent of, to partial interest, when no gift over extends 

no further, 277, 280 

When gift over assent of, to partial interest inures gene- 
rally to subsequent hmitee, 280, 532a 
When it does not inure generally to subsequent limltee, 532<i 
Assent of, whether it relates back to death of testator, 404 
Bound to redeem specific legacy in pawn, 372 
Liable if specific legacy be unnecessarily retained, and be 

lost, destroyed, or injured, 372, 394, 502 

Liable if he pay money to partial legatee, without secu- 
rity, 511,512 
Whether accountable to partial legatee for profits or in- 
terests before time of distribution, 499-iOl, 464, 515 
When enjoined from disposing of specific legacy, 372, 394 
Must be party to bill for security by distributees of de- 
ceased remainder-man, 530 
When construed to mean next of kin, 260 

Executor — = 

Entitled, at common law, unless excluded, 280 

May assent to legacy to himself before administration, 496 
See " Executors and Administrators." 

Executory Interests — See "Future Interests,'^ "Re- 
versions," " Remainders," " Springing Interests," 
^Augmentative Limitations,' ^ Conditional Limitations.' 

O 7 

Extinguishment — - 

370, 371 

Failure of Issue— See "Remoteness." 

Family — 

93, 94 

Fees— See " Estate," 




368, 292 

Fraudulent Conveyances — 

Whether of chattels not subject to fi. fa. 63 


Fraudulent Conveyances — (continued.) 

As to creditors and purchasers, 61, 62. 361-362, 429 

See "Voluntary Settlements." 

Friends — Construed to be synonymous to relations, when 
gift to "relations or friends," 89 

Future Interests — 

Of the different kinds in personalty, 266 

Similar to those in realty, 266 

Reversionary. See "Reversions." 
By way of remainder. See "Remainders." 
Conditional limitations. See "Conditional Limitations." 
Springing interests. See "Springing Interests." 
Augmentative limitations. See "Augmentative Limitations." 
Destructibility of, 394-405, 268 

" See "Merger," "Suspension," "Extinguish- 

ment/' "Estoppel." 
Alienation of, when vested, by deed or will, 407 

" " " by parol, 407 

" " " by execution, 408-416 

" " " by chancery process, 416 

" " " by election. See "Election." 

" " when contingent, by will, 420 

" " by deed, 421-426 

" " by parol, 427 

" " by election, 428 

Sales of, how treated in equity, 429-444 

Assignments voluntary and in invitum of wife's, by hus- 
band, 446-476 
Persons having, entitled to inventory, 497, 522 
When entitled to injunction and security, for 

forthcoming of property, 522-531 

May elect between property taken by particu- 
lar tenant when exchanged, or the proceeds 
of sale when sold absolutely, and the property 
limited, 528 

May maintain action on the case, 532 

Assent of executor to particular interest inures to per- 
sons having, except, 5320, 280 


Future Interests — (continued.) 

Time when they fall into possession determined by terms 

of instrument, 535 

A seeming exception to last rule, 533 

When enjoyment of, commences, 534 

What persons having, entitled to^wben form or substance 

changed, 537-539 

How action brought when representatives of particular 

tenant claim property, 541 

Flow account taken between persons having, and partial 
owners, upon espiration of partial ownership, when 
property converted, or ought to have been converted 
into money, or is money, 541 

— when property is lost, 54! 

* — when particular tenant has power of appropriating 

principal to particular purpose, 542 

— when property enjoyed in specie, 543-554 

— in case of incumbrances, 555-564, 566 

Acceptance of, 507, n. (a) 

Grakd Children — 

Whether included in gift— see "Children," "Family," 

" Next of Kin," &c. 
Under gift to all of her, except one, viz: — , all held entitled, 97 

Grayel — When chattels personal, 1 

Heir— ■ 

Construed as heirs, 304a 

When a word of limitation, 259, 250 

Difference between construction of, and of " heirs," 259a 


Who entitled to take under gift to, by purchase, 101 

Construction of limitation to, 246-253, 259, 259c, 300 

Of the body, who entitled to take under gift to, by pur- 
chase, 102 
Of the body, construction of limitation to, 249-253, 259, 259a 
Male of the body, who entitled under gift to, when by 

purchase, 103 

Female of the body, " *^ " " « " « 104 

Limitations to donors, 59, 364, 365 

Heir-looms— 16 

29 D 











218, 233, 



■, 56C 

396 index. reference to sections. 

Hotch-pot — 

Houses — When chattels personal, 

Husband — See *'' Alienation." 
Title of, to v/ife's property, 
" " by survivorship whence derived, 

Idiots — 

" If "—Construed, 

''' If An¥ " — 

"In Case"— 

Incumbrance — 

When property limited in succession, 

Executor bound to discharge, when specific legacy in pawn, 373 

Indivisibility — See "Title." 

In Esse — See " Persons." 

Infants — See " Minor." 

In vetre samere, 209. 21^) 

" " " See » Persons." 

Whether they can execute conveyance, 49 

Whether they can elect, 384 

Injunction— 372, 394, 522-531 

Intent— Repugnancy between general and particular, 175-177 

Interest — 

Gift of, passes principal, 234, 235 and n. ;<7) 

*' " vests postponed gift of principal, 214 220 

'< '^ *' when not, 216,216,226 

Payable on legacy from what time, 518, 519, 512, 515 

Whether executor liable to legatee for, accrued before 

period of distribution, 499, 500 

How long particular tenant entitled to, where the gift is 

money, 511 

How long particular tenant entitled to, when chattels to 
be converted, 512, 481 


Interest — {continued.) 

When gift to A for life with accumulation of, from testa- 
tors death, with gift of income of residue to H for life, 
and some years afterwards it is ascertained contingency 
cannot happen, H entitled to interest from death of tes- 
tator, 517 
How it accrues, 514 
Eate of, 520 
Accrued at termination of particular interest to whom it 

belongs, 514 

See "Partial Interests," " Future Interests." 
Concerning land, what, under the statute of frauds, 1 

" In the EvEi^T "— 233 

Intestacy — Courts lean against, whenever a residuary 

gift, 222 

Inventory— 497,522 

Issue — 

Who included in gift to, wheu word of purchase, 95 

When a word of limitation, 259, 2596 

See " Remoteness." 

Joint Tenants — 

Whether persons take as, when gift vests at different times, 329 
Release to one of, how it operates, 426 

Gift to two persons as, one dies before testator, other takes 
the whole, 305 

Kin— See "Next of Kin." 

Laches — 

In vendor of future interest, 432, 436, 437 

In owner of future interest when levied on as property 

of one having present partial interest, 374, 375 

See "Estoppel." 

Land — 

When regarded as personalty, 1 

What an interest concerning, under statute of frauds, 1 


Land — (continued.) 

Of sums payable out of, infuturo^ 226 

Constitutes, together with interests issuing out of, or an- 
nexed to it, the subject of real property, 1 

Larceny — 1 

Law — Sources of this branch of, 6 

Legacies — 

When interest payable on, 515, 518, 519, 520 

Acceptance of, 404 n. (a) 507 n. (a) 

See " Limitations," " Conditions," " Partial Interests," " Fu- 
ture interests," &c. See also " Legatees" and " Specific 
In regard to, when double, 130 and n. (a) 

When inconsistent larger interest passes, unless, &c. 105 

Legal Representatives — Legal Personal Representa- 
tives, 98, 98ce, 260 n. (a) 

Legatees — 

Who take under gift to, 105 

Take larger of two inconsistent interests unless controlled 

by intention, lao 

See "Joint Tenants," " Specific Legacy" — See " Persons," 

"Children," "Executors and Administrators," "Heirs," 

"Nieces," &c. 

Lien— Of particular tenant paying off incumbrance, 560-564 

Life Estate — See " Estate," " Partial Interests." 

Limitation— Words of, 259, 259a, 259Z», 260, 227, 228 

Limitations, of Chattels Personal — 

Creation of, inequity, 8-13, 14 

" " at law, 7, 12-14 

In what kinds allowed, 15 

" " " not allowed, 17-22 

Same as of real property, except, &c. 23-24 

Different kinds of, in prcesenti, 243 

" " " infuturo, 266-273 

On condition, see "Conditions." 

INDEX.— Reference to sections. 399 

Limitations, of Chattels Personal — {continued.) 

Who may create, 48 

To whom they may be made, 48 

" " " " exceptions, 49-54 

By a man to himself, 57 

" " to his wife, 58 

" " to his heirs, 69, 364, 365 

To executors and administrators, 99, 260, 300 

To issue, see " Issue." 

To unincorporated companies, 60 

To persons not in esse, see '• Persons." 
To classes, see " Class." 

For charitable purposes, 61 

See '' Fraudulent Conveyances," "Voluntary Settlements.*' 
Must not be repugnant, see "Repugnancy." 
Must have certainty, see " Certainty." 
Must not be too remote, see "Remoteness." 
Of what shall remain or be left, 71-79^ l46 

To persons by description, as nieces, servants, &c. 80-114, 210 
To "A and his children," to " A and his sons," &c. 227. 228 

To A every Monday, to B every Tuesday, &c. 229 

Distinguished from conditions, .. 132-137,347 

' When conditions operate as, 286 

Any number of, when future may be made each carry- 
ing the whole interest, 230, 231, 232, 233 
Of profits or interest passes principal, 234, 235 and n. (o) 
Construed to be absolute rather than partial when no gift 

over, contra when gift over, 235a, 264 

Are alternative limitations, unless contrary intent ap- 
pear, 231, 348, 354-356, 303 
May be one kind in one event, and another kind in an- 
other event, 358 
When construed to be alternative rather than conditional, 354-356 
Policy of allowing, 236 239 
See "Partial Interests," "Future Interests," "Remain- 
ders," " Conditional Limitations," " Springing Interests," 
"^Augmentative Limitations," "Diminuent Limita- 
tions," &c. 
Statute of, see " Statute of Limitations." 

Lunatics— 49^ 334 

400 index. — reference to sections. 

Married Women — 

No power of disposing of chattels, 50 

Unless under a power, 50 

Or when held to their separate use, 50, 391 

Even in last case may be restrained, 139, 391 

Of election by, 384-387 
Of alienation of interests not in possession belonging to, 

by husband, 446-476 

Of their right by survivorship, 446-475 

Merger— 869, 450, 456, 301, 394 

Minor — • 

Entitled to interest upon legacy before payable, when, 520 
See " Infants." 

Money — 

May be limited in succession, 15 

How partial donee entitled, 511 

How party in futuro entitled, 534, 536 

When arising from conversion of perishable property, 513 

Legacy, when it bears interest, 515, 518, 519 

Mortgage — Sale of future interests, when set aside, 

treated as, 43i 

" Most Necessitous Relations," 85 

^'Nearest Relations," construed — 86 

" Near Relations," construed— 85 

" Necessitous Relations," 85 

Ne Exeat, 52*7 

Nieces — who entitled under gift to, 9T 

Nephews — who entitled under gift to, 9*7 

'^ Never Having Been," construed, 353 

Next of Kin — 

Title of, not defeated by declaration that they shall not 

take, but by valid disposition alone, 280 


Next of Kin — {continued.) 

Gifts to, when invalid by reason of the title by law, 59 
Construction of gift to, "or heir at law," 83 
" " " "or unto and amongst the per- 
sonal representatives," 1 1 3 
When construed to mean "nearest of kin," 96 

Notice— 376, 429 

Onus — 

Rests upon those who attempt to extend ordinary signi- 
fication of words. 97 

In case of sale of future interest, 430, 431 

In case of account between partial donee, or his repre- 
sentatives, and him entitled subsequently, 554 

That perishable property limited in succession was in- 
tended to be enjoyed in specie^ 483 

" Or," how construed when between donees, as " to A or 
B," 83, 111-113 

Construed "and," 350, and n. (a) 

Paramount Title, cannot be set up in one of two or more 
p^laintifTs in Equity, by defendant, to defeat the juris- 
diction of the Court, 523 

Parol Evidence — 233 

Parol Gifts — See "Limitations.'^ 

Partial Interests — 

Creation of, 7-14, 240-244 

In what chattels, 15-20 

Enlarged by construction, 246-261, 281, 182, 192 

Apparent absolute interests cut down tOjby construction, 262-264 
With powers of disposition or apppropriation whether 

absolute property, 156-173 

See "Powers." 
Persons having, entitled to possession of property when 

not perishable wholly or in part, 480 

When perishable wholly or in part, not entitled to posses- 
sion unless[intent to that effect appear, 48 1 -489 


Partial Interests — {continued.) 

Upon whom onus of showing intent rests in such case, 483 

Persons having, in money or property converted into mo- 
ney, whether entitled to possession of it, 511, 513 

To what entitled, 481 

Whether donees of, entitled to increase of animals or 
slaves, 503-510 

Whether entitled to extraordinary dividends of bank stock, 505 

What donees of, entitled to during time property which 
ought to be converted remains unconverted 515 

When whole or part cannot be converted, 516 

Whether entitled to profit during time property to be en- 
joyed in specie remains in hands of executor, 499, 501 

When donees of, entitled to enter into possession, 490, 491 

" " " " " " enjoyment, 498 

Measure of, and of the manner in which donees of may 
enjoy, 499 

May maintain actions, see "Actions." 

See " Executors and Administrators." See " Inventory." 
See "Emblements," "Forfeiture," " Election," "Estop- 
pel," "Transmission," "Alienation." 

If donees of, die before dividends of stock, or before an- 
nuities become payable, representatives not entitled, 514 

Donees of, entitled to interest accrued at death, 514 

How donees of, in consumable articles may use them, 
when not entitled absolutely, 510, 547, 548 

Donees of, in plantation, &c., bound to good husbandry, 510, 549 

When donees of, have power of disposition, how measure 
of enjoyment determined, ' 521 

Donees of, entitled to property in any form or substance 
into which changed, v/hen, 537-539 

Account between donees of, or their representatives and 
parties subsequently entitled, when property converted, 54 1 
— enjoyed in specie, 543-554 

— lost or destroyed, 541 

— when particular tenant has power of appropriating 

to particular purpose, 542 

— in case of incumbrance, 554-564, 566 

Donees of, paying off incumbrance, have lien, 562 


Partial Interests — {continued.) 

Donees of, paying off incumbrance, Vive prima fade creditors, 560 

See '• Estate," "Limitations^' 

Patents — • ^5 2 

Perishable Articles — 

Whether they may be limited in succession, 20-22 

Of their converson, 22, 481-488, 512, 516 

See "Future Interests," "Partial Interests." 

Perpetuity — See ^^ Remoteness.'^ 

Persons — 

•Not in e.'ise, gifts to, in prcesentLj 52-55 

" '' future limitations to, ' 53, 202, 347, 348 

When said to be in esse, 209, 210 

When said to be born though in ventre matris, 210 
Limitations to, by description, as "family," "children," &c. 82 et 


" Then living," whether gift to, vested, -218,221 

'* Who shall attain," whether gift to, vested, 218 

Personal Representatives — ■ 

Limitation to, who take, S8a, 260; n. (a) 

Poor Relations — 85 

Poorest Relations — S5 


Wken delivery of deed tantamount to delivery of, 361, 362 

Whether necessary to perfect husband's title to wife's 
chattels, 447-476 

Possibilities — ■ 

May be limited in succession in equity, 15 

Of reverter, 283-294 

" " not subject to perpetuity rule, 286 

Upon possibilities, doctrine of, not applicable to limita- 
tions of personalty, 302, 340 

Powers — 

Whether when general, they may co-exist as powers 
merely with partialinterests, 156-173 


Powers — {continued.) 

When special may so co-exist, 170,173 

When donee of, has right of selection, may appoint to 
relations without as well as within degree of next of kin, 90, 94 

— has not such right, must appoint within degree of next 

of kin, 91, 94 

Of selection or distribution in favor of defined clajses, 
,who competent to take under, 204 

Test by which validity of appointment in such case de- 
termined, 204 

Gifts over in default of exercise of, when valid, 148-173 

When gift over to relations or family in default of exer- 
cise of power, relations or family mean next of kin, 92, 94 

When donee has general power, appointee takes, subject 
to claims of creditors, 265 

Defective execution of sometimes aided, but execution 
never supphed, 265 

Precatory Words — Whether they create trusts, 117-119, 174 

Profits — 

Gilt of; passes principal, 234, 235 and n. (o.) 

See " Partial Interests," "Future Interests." 
Particular tenant entitled to profits of estate, 429 

" "• what those profits are, 429 

Proof — See " Oww^/' "Parol Evidence." 

" Provided "— 218 

Purchaser — 

Of vested interests, whether protected against prior vol- 
untary settlement, 67, 361, 361a 

Of future contingent interests, whether protected against 

prior voluntary settlement, 429 

Title of, to goods not present at execution sale, 41 1 

Liable if he withhold property after demanded by bailor 
or remainderman, or other party entitled in fuiuro, and 
it be injured or destroyed, 554 

Of future interest under execution, entitled to be subro- 
gated though interest not liable to levy, 565 

Of future interests, entitled to security for forth-coming of 
property against one claiming under tenant for life, 565 

Takes no greater interest than vendor had power to convey, 368 


Quasi Augmentative Limitations — See " Augmenta- 
tive Limitations." 

Quasi Estates — See " Estate." 

Quasi Remainders — See "Remainders." 

Quasi Reversions — See " Reversions." 

Quasi Tenant for Life — See " Tenant for Life." 

Qu^ ipso usu Consumuntur-— See " Perishable Articles." 

Rail Road Stock — 1,2 

Real Property — 

Defined, 1 

When considered personalty, 1 

See "Land." 

Recommendatory Words — Whether thej create a 

trust, 117-119, 194 

Relations — 

Who take under gift to, 85 

" Necessitous,-' who take under gift to, 85 

"Near," "Pt)or," "Poorest," 85 

" Most necessitous," So 

'^ Nearest," 86 

"By blood or marriage," ^ 87 

Of a specified name, 88 

"And friends," 89 

Of appointments to, 90-91 
Construction of, when gift over in default of appointment, 92 

Release — 

Of future contingent interest, J 24 

When construed to be a conveyance, 425 

How it operates when made to one of two joint tenants. 426 

Remainders — 

In chattels personal properly called quasi^ 270 

" " " " defined, 296 

— not destroyed by act of particular donee, 270 

*' " " exception, 270 


Remainders — {continued.) 

No particular estate required lo support them, 29S 

Do not differ in nature from springing interests, 271 

But a difference as to perpetuity rule, 359a 

Must be preceded by particular interest to constitute them 

quasi remainders, 303 

Must be limited to one who can fake by purchase, 300, 59 

Must be exempt from merger at its creation, 300 

Not subject to rule of possibility upon a possibility, 302 

Subject to rule against perpetuity, 302 

Governed by doctrines of uses and devises, 304 

Take effect presently when particular tenant incapable^ 

dead, or refuses to take, 302-305 

Alternative limitations unless contrary intent appears, 306-315 
Whether condition precedent annexed to preceding estate 

extends to, SI 0-3 1 5 

Doctrine that condition annexed to particular interest is 

destroyed by limitation over by way of remainder, does 

not extend to, 31 6 

Are vested or contingent, 317 

Contingent created by deed, 53 

Hules for determining whether vested or contingent, 317, 319 
May depend on either of two or more events, 318 

May be vested on one event and contingent on another, 318 
Different kinds of, contingent, 319a 

All may be united, 319a 

Illustrations of several kinds of contingent, 320-322 

Words creating, may import contingency though tliey 

mean no more than is implied, 323 

Vesting of, sub modo, 324, 330 

Cannot become divested to admit another person to take 

in preference or by way of substitution, 325. 

Whether, when contingent, they must vest during contin- 
uance of particular estate, 326, 327 
Whether taken as joint tenants by a class when interests 

vest at different times, 329 

Whether liable to execution, 407-416 

" " process in equity, 416 

See "Limitations,". "Cross-Remainders," "Alienation," 

" Future Interests," 
Transmission of, see "Transmission." 


Remoteness — 

General rule, 178 

Most frequent in two classes of cases, 180 
Imported by "die without issue," "in default of issue," 

. "on fail ure of issue,'' " if he die before he has any issue," 1 8 1 
Exception when gift to take effect upon donor's dying 

without issue and he has no issue, 182 

Courts lean against, in personalty, for, in realty, 183 

No distinction between chattels real and personal, 183 

Words importing, restricted by context, 183 

In four classes of cases, 184 

1. When failure of issue is combined with event personal 

to donee, 185 

2. By words or phrases of the context, 186 

3. By the subject of the gift, 189 

4. By the nature of the gift over, 190 
A case sui generis^ 191 
Restricted by Code, (Ala.) 196 
Comment on, 197 
Of the distinction in regard to " leaning," 187, 188 
In looking for intent court will not look through whole 

instrument, but will confine itself to terms of gift, 194-95 
Imported by " dying without heirs," or " without an heir," 

or " dying without descendants," 197 

Exception, see 2 Fearne's Rem. 719a 

Of the reason given why such limitations are void, 198 

In regard to limitations to classes, 199-201, 202 

Makes no difference whether first gift be absolute or ex- 
pressly for life, 192 
Nor whether the principal, or the interest alone be given, 193 
Postponement of enjoyment, partially, or wholly, does 

not affect vested gift with, 202, 359a 

Limitation ulterior to limitation void for, also void, 203 

Exception to last rule, 203 

In case of appointments under powers, 204 

Trusts for accumulation subject to rule, 205 

Rule against, affects executory interest alone, 206, 359a, 3596 
Possibilities of reverter not subject to, 286 

When limitation over void for, prior gift, even expressly 
for life, enlarged into absolute interest, 192, 254-259 


Remoteness — (continued,) 

Difference as to, between springing interest and quasi re- 
mainder, 3596 

Remittitur Conditio — 43 

Representatives — 98, 98a 

Repugnancy — 

In gifts of same thing to different persons, 121-128 

In quantity of interest given, 1 29 . 130 

In exception, proviso or condition, 131, 143 

In limitations over, 144 

" " of so much as shall be left or remain, 146, 147 
In limitations over in case of non-disposition by first 

taker, 148-171 

In cases combining the two preceding, 172, 174 

Of, in intents, 175-177 

Residue — 

When gift of, court leans against intestacy, 222 

Distinction between gift of, and of specific legacy, 222-225 

Gift of income of, to H passes interest upon legacy to B 
upon contingency which it was afterwards ascertained 
would never happen, 517 

Resulting Trusts — See " Trusts." 

Reversions — 

How they arise, 267 

In chattels properly called quasi reversions, 267 

Exist at law and in equity, 274, 275 

lu what cases, 276-295, 59, 346, 364. 365 

Not destroyed by gift of partial interest with declaration 

that next of kin shall not take, 280-281 

Nor by intention to dispose of whole, if disposition be 

void or fail, 281,282 

Cannot exist after limitations like fees conditional or fees 

tail, 281, 282 

Hxist notwithstanding limitation to donor's heirs, " Next 

of Kin/' or "distributees," 59, 364-365 

Whether liable iofi.fa. 407-415 

" " to equitable process, 416 


Reversions — {continued.) 

Alienation of. at law, 407-4 1 6 

'•' of, in equity, 430-445 

Transmission of, see " Transmission." 

Rule in Shelley's Case, 246-248 

Sales— See "Alienation," Partial Interests," " Future 

Servants — 

Ex contractu, ^^^ 

Dejure, ^^6 

Who take under gifts to, 107, 108 
See " Slaves." 

Severance— Of chattels personal from freehold, 1 

Shares— (See " Dividends,") Ij ^ 

Sheriff— See "Actions," "Execution," "Deeds." 

Slaves — 

Cannot hold property, ^1; 1^8 

Limitations to, when valid, ^1 

Increase of, 277, 504-509 

Specific delivery of, compelled by chancery, 554 and n. («) 

If withheld by partial owner, or by one claiming under 

him, liable for value in case of death, loss, or injury, 554 

Status of, ^^^ 

Hearsay coming from, evidence of pedigree, 554, n. 2 

Soil — When chattels personal, 1 

Sources of this branch of law, " 

Specific Legacy — 

Legatee may call on Executor to redeem, if pledged, 372 

— entitled to value if unnecessarily retained, and 

it be lost, injured or destroyed, 372 

Equity will enjoin sale of, or injury to, if value be not 

computable, 37^ 

Of things qucB ipso usa consH.nuiitur., 20 22, 510 

Springing Interests — Defined, 359, 359a 

Are certain or contingent, 359a 

How created, 360, 362 


Springing Interests — {continued.) 

Subject to perpetuity rule, 359b, 178 

Sometimes called remainders when created by deed to 

take effect after donor's death, 362fl 

When valid against creditors and purchasers, see "Fraud- 
ulent Conveyances." 
Whether gift to donor's "heirs," "distributees," " next of 

kin," &c.. may take effect, 59, 364, 365 

Whether event upon which limited., a condition precedent, 366 
Augmentative limitations are but, 273 

Statute of Distributions- 
Statute OF Frauds — 
Statute of Limitations — ■ 
Statute of Uses — 
Stones, when chattels personal, 


Of limitations to, 

Gift over to, restricts '-'dying without issue," &c. to death, 191-194 

How they take a share survived, 334a 

Survivorship — 

Of persons perishing by same casualty, 478 

See "Husband," "Married Women." 

Suspension — 371 

Tenant for Life — See "Estate," "Partial Interests," 
"Future Interests." 











1 334 

" Then" construed, 

221, 218 

'* Then living" construed, 

218, 221 



Title — 

To chattels personal, absolute or qualified. 


—whence derived, 



Title — (continued.) 

Indivisibility of, "^"^ 

Of remainder-man, not affected by sale of tenant of par- 

ticular estate, 
Paramount, see "Paramount Title." 
When affected by change of form or substance of chattels 

personal, 537-539 

Of husband to wife's choses, 446 -476 


Of partial interests in prcesenti. '^92, 393 

Of fature interests, 477-479 

Transposition, of words, sentences, &c. 126 

Trees— When chattels personal and when not, 1 

TpvOVER--See "Actions," 

Trustee — 

Man cannot be for himself, 370 

See " Trusts." 

Trusts — 

By parol, - 10,11,360 

By deed, " ^^' ^^ 

By will, ^^ 

For slaves, 51, 288, 289 

Unincorporated companies, ^0 

For charitable purposes, ^1 

For creditors. ^^ 

Created by words of recommendation, &c. 117-119, l74 

Not repugnant to previous absolute gift, 174 
Certainty required in the creation of, see '' Certainty." 

For accumulation subject to perpetuity rule, 205 

Uncertainty— See " Certainty." 
''Upon'- construed, 



Of chattels personal, 8^ &: 240, 241 

See "Statute of Uses" 


412 index. reference to sec . ions. 

Vested — 

Interests so construed, rather than contingent, 207 

Rales for determining whether interest is, 208, 317, 319, 359<i 

— when donee is in esse^ 209 

— when donee is ascertained, 210 

— when no event a condition precedent, 211-226 

Sub modo, 324 

Interest cannot become divested to admit another person 

to take by way of substitution, or in preference, 325 

Voluntary Settlements — 

When fraudulent, 61-62.361-362,429 

Whether revocable, 64, 65 

Not defeated by subsequent sale, 67 

Of future contingent interests, not enforced against credi- 
tors; or purchasers even with notice, 429 

Volunteers — - 

Claiming under bailee or particular tenant, and withold- 
ing chattels, after demand, liable for value in case of 
injury or destruction, 554 

Assignments of future contingent interests enforced against, 429 

What shall remain or be left — Gift of, 71-79 

'' When" construed, 214, 217, 218 

'' Who shall Attain" — Construction, 218 

Wills — 

When instruments in form of deeds may talce effect as, 363, 364 
Fundamental rule in construction of, 2S0, 313 

Whether extrinsic evidence admitted, 82 

Read by the light of surrounding circumstances; 489 

^' Without Being — 350 

" Without Having" — 350